Copyright is important for all sorts of businesses. Sometimes you'll recognise something is copyrighted by the © symbol that you may see on photographs, websites, and presentations. Although used for all sorts of businesses, copyright for creatives is especially important because, as a creative, your currency is originality, so having someone strip you of this can be highly detrimental.
Technically, any work covered by copyright would be creative. So, for the purposes of this article, we are aiming to explain how intellectual property and copyright works for photographers, designers, computer software designers/developers, artists, musicians, writers, and those working in the arts. Specifically intellectual property for the self-employed and small business owners.
We will explain what intellectual property is, how it works, why it’s important, what you can copyright and how copyright for creatives can be protected.
What is Intellectual Property (IP)?
Intellectual property is an umbrella term for the laws protecting original ideas and work. Patents, trademarks, design rights and copyright are all types of intellectual property (find out more about this in our Assignment Of Intellectual Property article).
Patents are ideal for entrepreneurs who invent something unique and they must be applied for and granted to be enforced. Although this has a cost attached, usually it is well worth this to protect your intervention from being copied.
For creative works, patents are unnecessary and would be an unmanageable way of protecting your work. As such, copyright is automatically given to the creator and involves no contract, legal process, or even registration. Even the © symbol serves only as a reminder of copyright, it cannot grant copyright because the copyright exists as soon as the work does.
Copyright for creatives might include materials produced such as:
- Artwork and illustrations
- Articles, blogs, books, scripts, and other written content
- Websites, graphic designs, logos, technical drawings, etc
- Media created including music, video, any audio, and even social media content
- Computer software including the code
Copyright is automatically granted to the author of any work deemed ‘original’. This does not mean the work must be unique, however, creative decisions must have been made by the author in the process which makes the work uniquely ‘theirs’.
Who Owns The Copyright On Creative Work?
If you're employed by an organisation to create works on their behalf then your work does belong to the company, as per the terms of your employment. However, if you're self-employed this may not be the case. So, for example, if a company outsources the creation of an App to an App Developer, then they should establish who the code belongs to. This would usually be done within a contract – either a specific Assignment Of Intellectual Property contract or within the freelancer or company's Terms and Conditions. Detail of these conditions must be agreed upon and signed off by both parties to be imposed.
Why Is It Important To Establish Who Owns Copyright?
Let’s take the above example – An independent software developer who creates an app for a company. The app was the company’s idea and was commissioned by them. However, the code that created the app is the intellectual property of the creator (the developer) by default. So, if the developer is halfway through building the product and then has to leave the project, can the company use the code that has already been written?
This is where it depends upon the contract in place. Usually, if a creative is working as a freelancer then the copyright still belongs to the artist, but the use of it is lent to the client/company. This usage may come with certain stipulations. This will usually include the fee but also might include where and how the work is used and the company may be required to name the creator when using their work.
In other contracts, the company may insist upon complete ownership of the copyright.
In the above example, the app developer would own the copyright and so would have to be willing to license or sell it to the company. Hence, it would have been wise for the company to agree on ownership of copyright prior to the work commencing.
Why Is Copyright For Creatives Important?
Creative people earn their living and reputations through the work they produce. If that work can be used by somebody else, free of charge, then your ability to make a living from your talent is severely limited. This is a key reason why copyright is automatically granted to the artists, except in some specific circumstances. If a company were, for example, able to use any image they found online without paying a fee then that would make it very difficult for many photographers to generate income.
Let’s look at an example – An illustrator draws a picture of a character and posts it on social media. Somebody else takes this image and has it printed on t-shirts and then sells these at a profit. Fortunately, although this does happen, there is something that the illustrator can do about it. Not only will they be able to legally prevent the seller from continuing to use their image, but they can also pursue a case to receive compensation for use of their intellectual property. Alternatively, or in addition, they may decide to sell or license the image to the seller on an ongoing basis so that they both might profit.
Having copyright protected is essential for creatives. However, this does not mean it’s wise to always hold onto ownership. Creatives make money from selling or licensing the usage of copyrighted material. Use of Intellectual Property should work for all parties involved, the creative and the company. So any contract regarding the use of copyright should be fair.
Selling And Licensing Copyright
Copyright protection is automatic but copyright permission must be requested and agreed upon. This should be agreed upon within a contract. Whether you’re a photographer contracted to take photos for a large event or even if you’re just employing a friend to build you a website, you must establish who is going to own the copyright to the work produced.
As a business owner, there's no sense in commissioning something to be created and then now owning or having a licensing agreement over the copyright. This could mean that permission to use the work could cease at any time.
Likewise, as an artist, it’s important to consider carefully what your work is worth and ensure you’re not taken advantage of. For example, whilst a writer may be happy to hand over their script for a small fee, they may feel very differently in a few years if the buyer has made it into a lucrative Netflix series. They will also probably wish they’d licensed their copyrighted work as opposed to handing over the full rights too. Copyright clauses don’t only protect you, they give you the time you need to think about what is fair and allow you to consider a range of scenarios.
Need help? LegalDrop can help you find a Copyright lawyer
If you’d prefer to include copyright stipulations in your terms and conditions then a lawyer can help you draft this clause, ensuring that you’ve covered every angle and circumstance. A lawyer would also be able to draft you an Assignment Of Copyright Contract, which can be used by the creative or the commissioner as a standard contract or a unique document to cover a specific project.
LegalDrop’s legal comparison platform hosts many professionals who can assist with copyright clauses, contracts, and general advice. Find out more about them and their fees here or use our platform to match with a lawyer based on your requirements.