One thing nearly every freelance writer is going to have to do is sign a contract. Contracts, when written well, protect both the freelancer and the client by avoiding any confusion and preventing anyone from giving up any rights that they didn’t intend.
But as necessary and as useful as contracts are, they are often filled with terms that can cause confusion. Many freelancers, intimidated either by the size or the seeming complexity of their contracts often just sign them with little more than a cursory glance. This is a poor move that can cause a freelance to sign a bad deal with no legal recourse against it.
This is especially true when it comes to copyright, an already confusing area of law made even more so by the terms and conditions of many contracts. As such, you have to arm yourself with at least basic knowledge of copyright facts.
However, most of the terms related to copyright are actually fairly self-explanatory, making the section easy to understand. But, if you know a few additional key terms you can easily figure out what rights you’re signing away to your work and whether you are comfortable with it.Protect your work. Know your copyright terms. #freelancewriting #copyright Click To Tweet
With that in mind, here are 13 of the key terms that you need to know regarding copyright when reviewing a contract, what they mean and what to look for.
Copyright terms you need to know
Fair use allows the anyone to use copyrighted material under special, reasonable circumstances without asking for the copyright owner’s permission. In order for fair use to be applicable, the material must be used “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”
There are, however, many other factors that come into play when determining whether fair use is applicable. When in doubt, always ask the owner for permission.
When a piece of work is in the public domain, it is not protected by any copyright and that you can use it without asking for permission. This copyright term is as straightforward as that.
As you may well know, permission allows you to use copyrighted material in one way or another. To get permission, you have to reach out to the owner. That’s simple enough.
What’s not so straightforward is the kind of permission you need. This depends on the type of copyright the owner has.
As such, when you copyright your work, and someone asks for permission to use it, make sure that you specify clearly what they can use your work for. For example, are they allowed to use the content without changes, or can they modify it?
License is a broad term for the rights in a work that one is granting. Since copyright is a series of rights over an original work and those rights transfer, automatically, to the creator, clients need a license to exercise some of those rights over the work in order to get the use out of it they intended when they purchased it.
If you are granting a license to the work in the contract you are, by your very nature, not giving away all of the rights. What has to be determined is the specific rights that you are surrendering and what rights you are keeping.
One of the more important license elements to look at is whether the license is exclusive or non-exclusive. If the license you grant in the work is exclusive, then only the client can use the work in that capacity and any other use is an infringement.
This means both that you can not sell the work to another client and you can not use the work on your site(s) without first getting permission.
If the license is non-exclusive, you can legally offer the same licensing terms to others or use the works yourself. However, it may be considered in poor taste to do so, even with technical permission in the license.
Bear in mind that exclusivity can be limited in any number of ways including a certain time frame or that the work can not be licensed to any direct competitors. Always read this particular portion of a contract, if it exists, very carefully.
A sublicensable license can be, as the name might indicate, licensed out to others by the person receiving it. This means that the client can then re-license the work to others while continuing to use it themselves.
If the license is exclusive, this often goes without saying as they have sole discretion over who can use the work, but with non-exclusive license, this is essentially the client’s way of saying that they can offer the same license you give them to others.
Keep in mind that if a license is sublicenseable, they do not need your permission or approval to license it to others, meaning they could license it to sites that you would not wish your work to appear on.
A transferable license is similar to a sublicensable one in that they can give the rights to a third party. The difference, however, is that if they transfer the license they no longer have the license themselves, they have essentially given up their rights to use the work and passed those rights to someone else.
This is more common with exclusive licenses but can appear in any license. This means that another person or company, without your direct permission, could come to own the license that you gave to the first company in the license.
Also, many licenses are both transferable and sublicensable, giving the client the option to do either.
Derivative works are, in short, new works based on the original. If a license allows the client to make derivative works, they have permission create new works based on yours including videos, translations and other new creations.
Most of the time, this right is withheld more for the purpose of editing a work or modifying it to fit in the space allotted. However, if this right is granted wholesale and without those restrictions, it might still be used for other purposes legally.
Moral Rights/Attribution Rights
If you deal with clients outside the U.S., you may see a mention of moral rights. Clients within the U.S. may refer to them as attribution or authorship rights. In all cases, these basically deal with the right of the author to be credited for their work and receive a byline for the post.
If a contract asks you to waive your moral rights, you will most likely not be credited. #copyright #freelancewriting Click To Tweet
If a contract asks you to waive your moral rights or your attribution rights, you will most likely not be credited for the work and will either be treated as a nameless staff writer or be ghostwriting for someone else. Also, it is worth noting that moral rights also offer additional rights such as the right to object to offensive uses of a work and the right to not be attributed if you no longer wish to be associated with a work.
Give away these rights with extreme care.
If a client mentions that you are transferring copyright in a work, that means you will be giving up all rights to the work and they, at their sole discretion, will be responsible for it. You will need to seek permission from them to use the work for any purpose and they will have exclusive judgment over who to license it to.
The one thing that is not automatically included in a copyright transfer is moral rights. However, most contracts that call for a copyright transfer also ask for a surrendering of moral rights. This leaves you with absolutely no recourse or ability to object to any use of the work as the client owns it completely.
Only transfer the copyright in your work if you are completely sure that it is what you want to do and you feel that you have been renumerated adequately for it. It is also worth noting that you can only transfer copyright in the U.S. through a written contract, however, any contract signed as part of a freelance writing job would, most likely, qualify.
When you see a job ad stating that it is a “work-for-hire” setup, you have to understand that you will not be owning your work at all.
There are two scenarios:
- An employee creates work for the company as part of the job. The company owns the copyright.
- A company/individual (client) orders work, say articles. The client then owns what you produce.
Trademark refers to anything from a word, name, or symbol that is used to distinguish a product from others in its niche.
When it comes to freelance writing (and writing in general), some things worth noting:
- You can trademark your name but it cannot stop other authors with the same name from using it, so it may not be critical to trademark your name.
- However, if you are looking to go further and build a brand based on your name, then you should get the trademark. Case in point: Australian trade mark number 828604, for instance, protects the trademark “J K ROWLING” for a wide range of products including games, clothing, stationery, computer software – and books.
- You can use trademarked names without asking for permission.
A copyright notice usually follows the form “© [name of copyright owner] [year of creation]”.
While this is not required by the United States Copyright Act anymore, it is still often used to make it clear that the work (or website) is protected by copyright. So, for your online portfolio, it’s still a good idea to put a copyright notice. This is usually placed in the footer.
Though there are, obviously, many other terms to look out for, most are self-explanatory and don’t cause much confusion. If you know to look for these key terms, understand what they mean and read through your contracts carefully, you’ll likely get a good feeling for the rights you are giving away and how comfortable you feel about doing so.
If you are uneasy about a contract, get an attorney to look over it for you so that you can be sure everything is in order.
Also, remember that any freelance writing contract worth the paper it is printed on will have a lot more than copyright issues hashed out within it. It’s important to take a look at the whole contract, not just the license, and make sure that your expectations match.
In short, knowing these terms may not make you a contract wizard, but it might help send up some red flags when something just isn’t right.
This post was originally written by Jonathan Bailey. Have a question about the law and freelance writing? Either leave a comment below or contact him directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs).