Copyright Protection for Freelancers: How to Protect Yourself From Disaster

As a freelancer, safeguarding your creative work can often feel like an uphill battle. Take, for example, the case of nearly 3,000 freelance journalists who sued major publishers for copyright infringement. After a 17-year legal battle, they finally secured a $9 million settlement in 2018.

This landmark case underscores a prevalent concern among freelancers: protecting their intellectual property from unauthorized use. Whether you’re a freelance writer, designer, developer, or artist, the fear of having your original works copied or misused can be daunting. So, what can you do about it?

The good news is that by understanding your intellectual property (IP) rights and applying practical strategies, you can better protect your work and preserve your creative integrity. This article will guide you through essential steps to secure your intellectual property effectively.

Understanding Copyright Protection for Freelancers

Copyright laws automatically protect any original content created by freelancers—whether it’s literary, artistic, programming code, or designs—from the moment of creation. This includes not only literary and artistic works but also computer software, which is considered an original work of authorship.

Under US federal law, this protection lasts for the creator’s lifetime plus 70 years. As a freelancer, you inherently own exclusive rights to reproduce, distribute, and display your work unless you explicitly transfer these rights.

How Freelancers Can Use Copyright Law

Freelancers can leverage copyright law by explicitly stating the copyright ownership rights in a freelance contract before beginning work with any client. To effectively protect your work, they should cover:

Ownership: Clearly state in your contract who owns the work product.
Rights Retained: Detail the rights you retain, such as the right to display the work in your portfolio.
Licensing: Specify whether the client’s use of your work is exclusive or non-exclusive and outline the scope of the license (where, when, and how the work can be used).
Duration of Use: Define the time frame for which the client can use your creative output.

By implementing these practices, freelancers can maintain control over their work and clearly define the terms of use for their clients.

Rights of a Copyright Owner

Reproduction Rights: The ability to make copies or phonorecords of the work.
Derivative Works: The right to create new works based on the original, such as adaptations or translations.
Distribution Rights: The ability to sell, lease, rent, or lend copies to the public.
Public Performance Rights: The right to perform the work publicly if it is literary, musical, dramatic, choreographic, pantomime, or audiovisual.
Public Display Rights: The right to exhibit the work publicly, including literary, musical, dramatic, choreographic works, and visual works like paintings or sculptures.
Digital Transmission Rights: Specifically for sound recordings, this includes the right to perform the work publicly through digital audio transmission.

By understanding and utilizing these rights, copyright owners can effectively protect and manage their creative works. They can also grant permission for others to use their work under specific terms while retaining ownership of the copyright.

What Is Not Protected by Copyright

To fully grasp how to protect creative work, it’s also important to understand what copyright does not cover. Here’s a summary of the types of works and subject matter that fall outside copyright protection:

Ideas, Methods, and Systems: Concepts, procedures, and systems cannot be copyrighted. Only the expression of these ideas is protected.
- Example: While the method of cooking in a book can’t be copyrighted, the specific text and illustrations can be.
Inventions: The functionality of inventions is not covered by copyright; however, technical drawings or descriptions are protected.
- Example: A patent covers the invention, while a copyright protects detailed descriptions or drawings.
Recipes: Simple ingredient lists and basic instructions are not protected. However, creative narratives or illustrations in a cookbook may be.

Example: The list of ingredients is not copyrighted, but a cookbook with unique content can be.
Names, Titles, and Short Phrases: These are not covered by copyright but may be protected under trademark laws.

Example: The title of a book or business name cannot be copyrighted.
Typefaces, Fonts, and Lettering: These are not eligible for copyright protection but might be under different laws in specific cases.

Example: A font design itself isn’t copyrighted, though its use in creative works might be.
Layout and Design: General layouts or formats are not copyrighted; however, specific creative content within them may be.

Example: A website template design isn’t protected, but the content within it might be.
Blank Forms: Forms with blank fields for recording information are not protected, but creative content added to them may be.

Example: A blank invoice template isn’t copyrighted, but the custom graphics or text are.
Familiar Symbols and Designs: Common symbols and simple shapes are not protected, but complex works featuring these elements might be.
Example: A basic star shape cannot be copyrighted, but a detailed artwork including it can be.

Sign contracts and access the best free templates. Try Bloom, the #1 business management solution. Start a free trial and get 50% OFF.

Steps to Protect Your Work as a Freelancer

To effectively secure your intellectual property, proactive steps should be taken to minimize risks and enhance the legal standing of your work at each stage of the project.

Step 1: Craft a Rock-Solid Contract

Your primary defense is a well-drafted contract. When finalizing a written agreement with a client, include a section titled “Intellectual Property Rights” that covers:

Ownership of Work: Specify that the client owns the final deliverables upon payment, but you retain rights to preliminary sketches or unused concepts.
Usage Rights: Define how the client can use the work, such as in marketing materials, and clarify any restrictions on resale or licensing.
IP Transfer: Detail the conditions under which IP rights are transferred to the client.

Approaches to Intellectual Property Transfer:

If Transferring IP:
- Work for Hire Clause: For instance, “All work produced under this agreement is considered ‘work for hire’ with rights transferring to the Client upon completion and full payment.”
- IP Transfer Clause: Example: “All intellectual property rights in the work will transfer to the Client upon full payment.”
If Not Transferring IP:
- Limited License Clause: For example, “The Freelancer grants a non-exclusive, worldwide license for the specified uses, retaining all other rights.”
- Usage Restrictions: Define limitations on resale or sublicensing.

Consider a Non-Disclosure Agreement (NDA): This protects your ideas and proprietary information, especially when sharing original designs or business strategies.

Step 2: Be Clear About What You’re Selling

Clearly state in your contract what is included in the deliverables:

Can Sell: Final deliverables, copyright, or limited licensing.
Cannot Sell (Unless Agreed): Source files, future work or updates, and moral rights.

Example Clause: “The deliverables include final design files in .jpg and .png formats. Source files remain the Freelancer’s property unless otherwise agreed.”

Step 3: Choose the Right Intellectual Property Protection

When it comes to protecting your work and brand as a freelancer, understanding the different types of intellectual property protections is essential. Depending on what you need to safeguard, you may choose between trademarks, copyrights, or patents. Here’s a breakdown of each type of protection:

Trademarks: Protect brand identifiers like names and logos. Essential if you have a unique brand name or logo.
- What It Protects: Trademarks protect brand identifiers such as names, logos, slogans, and other symbols associated with your freelance business.
- When to Choose It: If you have a unique brand name, logo, or slogan that distinguishes your freelance business, registering a trademark can prevent others from using a similar mark that could confuse customers or dilute your brand. This is especially crucial if you plan to grow your brand or expand your services.
Patents: Safeguard new inventions or processes. Apply if you have developed a new product or technology.
- What It Protects: New inventions and processes, giving you the exclusive right to make, use, and sell the invention for a certain period.
- When to Choose It: If you’ve developed a new and unique product, process, or technology, you should consider applying for a patent. This protection is crucial for preventing others from making, using, or selling your invention without permission.
Copyrights: Protect original works of authorship. Essential for creative content like graphic designs or articles.
- What It Protects: Copyrights safeguard original works of authorship that are fixed in a tangible form, whether physical or digital. This includes written content, music, visual designs, software, and more.
- When to Choose It: If you create original content—like graphic designs, software, articles, or any other creative work—you should consider registering a copyright. While your work is automatically protected from the moment of creation, registration makes it easier to enforce your rights and claim damages in case of infringement.
Trade Secrets: Protect confidential information that gives your business a competitive advantage.
- What It Protects: Trade secrets safeguard confidential information such as formulas, practices, processes, designs, or compilations of data that are not generally known or readily accessible. This protection helps maintain your company’s competitive edge.
- When to Choose It: If your freelance business relies on unique information—like a secret recipe or proprietary process—you should implement measures to keep it confidential. If this information is disclosed without authorization, legal action can be taken to protect your interests.

TIP: One effective way to protect your creative work is by using Creative Commons licenses. These licenses provide legal protection and clarity on how your content can be used by others. Creative Commons offers various licensing options that allow you to specify the usage rights for your work, making it a valuable resource for content protection and management.

Step 4: Use Watermarks and Copyright Notices

Watermarks and copyright notices help protect your work before final rights transfer or licensing. Remember, these measures do not replace official copyright registration but serve as temporary safeguards.

A. If Transferring IP Rights (Work for Hire or IP Transfer):

During the Draft/Review Stage: Use watermarks and copyright notices on drafts and samples. This indicates that the IP has not yet been transferred. Example notice for written content: “© [Year] [Your Name]. All rights reserved.”
After Final Delivery and Payment: Remove watermarks and notices once the work is completed and payment is received. The client now owns the rights and may apply their own notices if desired.

B. If Retaining IP Rights (Limited License):

During and After the Project: Continue to use watermarks on visual work and copyright notices to assert ownership. Example notice: “© [Year] [Your Name]. Licensed for use by [Client Name].”
“Some Rights Reserved”: If you wish to retain certain rights while allowing limited use, include this phrase in your notice. This is common for stock photos and designs.

Step 5: Keep Detailed Records

Documenting your creative process is crucial for proving the originality of your work. Include sketches, drafts, and client communications.

Using a CRM: Centralize client interactions and project details using a CRM system. This ensures secure access, efficient contract management, and automated reminders. It also helps in maintaining detailed reports for better control and protection of your work.

Step 6: Monitor for Unauthorized Use

Set Up Google Alerts

Monitor your work by setting up Google Alerts for your name, key phrases, or unique excerpts. This will notify you whenever these terms appear online, helping you track potential unauthorized uses of your content.

Check Content-Sharing Platforms

Regularly review popular platforms where your content might be republished, such as:

Social Media: Check sites like Facebook, Twitter, LinkedIn, Instagram, and Reddit for any reposts or shares of your work that lack proper attribution.
Blogging Platforms: Platforms such as WordPress, Medium, Tumblr, and Blogger are common places where content might be reposted.
Content Aggregators: Websites like Pinterest, Flipboard, and Feedly often collect and share content, sometimes without proper credit.
File-Sharing Sites: Monitor platforms such as Scribd, SlideShare, and Google Drive for unauthorized uploads of your documents or files.
E-commerce Platforms: If your content relates to products, check product listings on platforms like Amazon, eBay, Etsy, and AliExpress for misuse.
Niche Communities and Forums: Search specialized forums, Reddit communities, and industry-specific groups where your content might be used or shared

Use Reverse Image Search

For visual content like images or infographics, use reverse image search tools such as Google Images or TinEye. These tools help identify instances of your visuals being used without permission.

Manual Web Searches

Perform occasional manual searches using unique phrases from your work in search engines. This can help uncover unauthorized use that automated tools might miss.

Step 7: Understand Fair Use

Fair use is a legal doctrine allowing limited use of copyrighted material without permission from the rights holder. It typically applies to purposes like criticism, commentary, news reporting, teaching, scholarship, or research. However, determining fair use can be complex and requires careful consideration.

Fair dealing, similar to fair use, allows for the limited use of copyrighted materials without the owner’s consent, particularly for purposes like reviews or non-commercial research. Its application can vary based on justifiability and the specifics of each situation.

Key Factors of Fair Use

Evaluate whether a use qualifies as fair use by considering these four factors:

Purpose and Character: Is the use commercial or nonprofit educational?
Nature of the Work: What is the nature of the copyrighted material?
Amount and Substantiality: How much of the copyrighted work is used, and is it a significant portion?
Effect on Market: Does the use affect the market or value of the original work?

What Should I Do if My Work Is Used Without Permission? (Copyright Infringement)

Follow these steps to handle unauthorized use of your work:

Step 1: Document the Infringement

Gather evidence, such as screenshots, URLs, and any other relevant information about how and where your work is being used without permission.

Step 2: Assess the Situation

Determine if the use is fair use or a copyright violation. Consider these questions:

Purpose of Use: Is it commercial or non-commercial? Educational, research, commentary, or criticism?
Nature of Work: Is it creative (e.g., novel, movie) or factual (e.g., news report)? Published or unpublished?
Amount Used: Is it a small portion or a substantial part? Is the amount appropriate for the purpose?
Market Effect: Does the use affect the market value of the original work? Does it substitute the original work, reducing its sales or demand?
Transformative Use: Does it add new expression, meaning, or value? Is it a direct copy or significantly altered?

Step 3: Contact the Infringer

Politely inform the user about the copyright violation. Request that they stop using your work or obtain the appropriate license.

Step 4: Send a Cease and Desist Letter

If initial contact doesn’t resolve the issue, send a formal cease and desist letter outlining the specific infringement, your rights, and the actions you will take if the unauthorized use continues.

Step 5: Submit a DMCA Takedown Notice

If necessary, submit a DMCA takedown notice to the service provider hosting the infringing content. Follow these steps:

Identify the infringing content.
Prepare your notice with contact details, a description of your copyrighted work, and the infringing URLs.
Submit the notice to the service provider’s DMCA agent.
Follow up if the content is not removed or seek legal help.
Escalate to the Copyright Claims Board if the DMCA notice is ineffective.
Consider legal action if other attempts fail or damages exceed the CCB claim limitation.

Legal Actions and Remedies

Injunctive Relief: Seek a court order to stop the infringing party from using your work.
Monetary Damages: Recover actual damages (your losses or the infringer’s profits) or statutory damages (set amounts per work infringed).
Attorney’s Fees: In some cases, recover your legal costs if you win the lawsuit.
Seizure and Destruction: The court may order the seizure and destruction of infringing copies of your work. Reinforcing that your creative works are legally protected.

Conclusion

Protecting your creative work is crucial to maintaining your rights and ensuring fair compensation. By understanding copyright law, implementing clear agreements, and taking proactive steps to safeguard your intellectual property, you can confidently navigate the complexities of IP protection.

Drafting clear and concise contracts, registering your copyright, and monitoring for infringement will help secure your creations and reinforce your role as a valued creator. Stay informed and vigilant to protect your creativity, safeguard your freelance business, and ensure that your hard work is respected and justly rewarded.

Sign contracts and access the best free templates. Try Bloom, the #1 business management solution. Start a free trial and get 50% OFF.

IP Rights for Freelancers FAQs

How Long Copyright Lasts

A: In the US, copyright protection lasts for the life of the author plus 70 years. For works made for hire, anonymous, or pseudonymous works, it lasts 95 years from publication or 120 years from creation, whichever is shorter.

How to Terminate a Copyright Transfer

A: You may terminate a copyright transfer 35 years after the assignment by following legal procedures and providing advance notice to the transferee.

What Are Reasonable vs. Unreasonable IP Requests from Clients?

Reasonable Requests:

Exclusive rights for specific project use.
A non-compete clause with limited time and scope.

Unreasonable Requests:

All rights to your pre-existing work or tools.
Blanket non-compete preventing you from working in your field.

What Should I Do If a Client Asks to Transfer All IP Rights?

Negotiate a higher fee for full rights transfer, offer a limited license, or transfer rights only for specific use. Freelancers often face challenges regarding their intellectual property rights under freelance contracts, where specific clauses can grant clients full rights over their work.

Remember, you can decline, but some clients may insist on full rights transfer as a condition of working with you. fair

Can I Use Client Work in My Portfolio?

A: Generally, yes, but it’s best to:

Include a portfolio rights clause in your written contract. For example:
- “Portfolio Rights: The Freelancer reserves the right to use and display final deliverables in their professional portfolio and self-promotional materials, without disclosing confidential information.”
Get written permission from the client.
Respect confidentiality agreements and remove any sensitive information before showcasing.

Co-authored by Brooke Davis, an experienced business attorney and pioneer in legal AI and technology.