Whose Responsibility is Copyright Enforcement?

If you work as a freelance writer long enough, it’s bound to happen: Something you’ve written will be infringed. Whether it’s marketing copy being lifted by a competitor, a blog post pilfered by a scraper or something else altogether, the work you were paid for will be used by someone else unlawfully.

But putting a stop to it can actually be very difficult. There are three parties involved, the infringer, the client and yourself. The dynamics between the three of them are, at times, complicated.

So who has the responsibility and/or the ability to enforce copyright in freelance-created works? The answer is fairly complicated and depends heavily on the situation.

However, with some planning before the contract is signed, these issues can be ironed out easily and headaches down the road can be avoided.

Whose Responsibility is it Anyway?

Generally, only one party has the ability to enforce copyright: The copyright holder.

In the freelance writing world, however, that can create a bit of a problem. The copyright holder, in most cases, is the freelancer, not the client.

If you are contract smart you know that you have to explicitly transfer copyright in writing and that most freelance contracts only require a license to use the work, not the full copyright in it.

This creates a problem. If the work is infringed, the client, the person with the greatest interest in resolving the issue, likely has their hands tied behind their backs. For example, the Digital Millennium Copyright Act explicitly requires that a DMCA notice be sent by either the copyright holder or someone authorized to act on their behalf (See 512(c)(3)).

However, as neither of those things, the client can’t file a takedown notice, can’t file suit and generally can’t enforce copyright beyond asking the infringer to stop.

This causes clients to do one of two things:

1. Send False Takedown Notices: Some clients, often without realizing it, file false takedown notices. This, however, can cause serious legal trouble as knowingly filing false takedown notices or misrepresenting facts in such a notice can result in severe penalties. It can also create trouble for the freelancer, especially if the other site is another client of theirs and received a legitimate license to use the work.
2. Contact the Freelancer for Help: Other times, the client may ask the freelancer to either file the takedown or authorize them to do so. This can be very annoying for the freelancer, who has to perform ongoing “maintenance” on content they were likely just paid once for.

However, the obvious solution, make the client the copyright holder, is probably a non-starter for most freelancers, who want to retain at least some control over their creations.

This creates a vicious catch-22 where a client can’t enforce the copyright, the freelancer has little motivation to do so and the infringer seems to be getting away scott-free.

Fortunately, there is a simple way around this and it can be done even before the freelancer starts writing.

A Simple Workaround

As mentioned above, the problem is simple. Freelancers don’t want to sign over their copyright (for a variety of reasons) but likely won’t be interested in enforcing every single case of infringement of their work once they’ve sold it, especially if the infringement becomes a recurring problem.

However, copyright law does not require the copyright holder him or herself file the notice. Instead, they can have an agent act on their behalf.

Thus, all a client has to do is request to be appointed as an agent authorized to act on the behalf of the copyright holder for that work. That will allow them to file DMCA takedown notices and possibly take other action (depending on the contract) without the freelancer having to sign over the full copyright interest in the world.

The complication to this would be that, if the freelancer wanted to rewrite the work or resell it (and do so with permission) they would have to remain in contact with the client to ensure that the new works were not taken down unjustly.

However, this kind of action would most likely be taken in conjunction with an exclusive license that would largely prevent these kinds of problems. The idea being that, if the freelancer can resell a work, the client has little business doing enforcement over it.

On that note, if the client doesn’t have at least some form of exclusivity over the work, meaning the freelancer can resell it, the freelancer is now the one with the motivation to enforce the copyright as those who misuse the work are essentially taking a good that’s for sale. As such, both the responsibility and motivation for enforcement lie with them.

Bottom Line

When it comes to the matter of copyright enforcement, the triangle between client, freelancer and infringer is a tricky one complicated by the fact that the freelancer usually holds the copyright but the client is the one with the most motivation to take action.

Designating the client as an agent with limited authority to act on behalf of the freelancer is a simple way to ensure freelancers can resolve infringement issues without badgering their former freelancers.

The main thing, however, is that this is something that needs to be discussed between the client and freelancer before the work is written. It can be assumed that almost any freelance writing work will, at some point, be infringed so it is best to hash these issues out before that happens rather than trying to scramble after a situation has come up.

All in all, this is truly a situation where a few moments of thought and preparation can save a lot of headache at a very critical time. It’s worth thinking about for that reason alone.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

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