One of the appeals of freelancing is the ability to pursue your own interests and ideas. Especially as you develop as a freelancer, it is often your point of view that potential clients will be interested in. Knowing this, it is important to understand how the ownership, or copyright, of your work is controlled, especially as it factors into working with clients. Though it can be overwhelming, it is important to understand and protect your copyright, as it can provide opportunities to support the longevity of your business.
Today, content created in one medium can become fodder for a variety of spinoffs. In the case of freelance writing and magazine articles, “Hustlers” (2019), “Blue Crush” (2002), and “Fast and the Furious” (2001) are all movies inspired by articles first found in the pages of New York Magazine, Outside, and Vibe, respectively. The right to turn those articles into successful films — and who got paid for it — is determined by the copyright.
Of course, not everything you write will be movie material, and you don’t necessarily need to retain the rights to everything you produce, but in the rapidly evolving media environment, an understanding of copyrights and a development of best practices can provide you with the business opportunity to revisit the work you create in podcasts, books, or whatever new media format emerges in the next several years.
To better understand copyrights, I spoke to a lawyer, Anibal A. Luque. He is the founder and managing attorney of Luque PLLC and provides strategic business and legal counseling to creatives and entrepreneurs. He has advised and consulted across the spectrum of the creative industries from independent record labels, art and fashion startups, stylists, fine artists, and DJs and producers.
What Does “Copyright” Actually Mean?
As Luque explains, “copyright” is a bundle of rights that protect the creator of an original work of art. This can cover images, visuals, literary works, choreography, audio visual work — really, any range of expression. It should be clear, though, that copyright doesn’t protect ideas itself, but more so how the idea is expressed. While anyone can produce work off of the idea of “freedom,” the idea is not what is copyrighted. Instead, it is the actual text choices, visual decisions, or movement choices in its final form that will have copyright protection.
There is no need to file any type of federal copyright paperwork in order to get those rights. As soon as the work is created, the copyright immediately belongs to the creator, unless otherwise specified by a contract with a client. In addition to ownership of the original work, copyright also covers how the work can be displayed, reproduced, and distributed, and any derivative of the work (this is what happens when an article is turned into a screenplay for a movie, podcast, or any other type of product). As creators make more work, they build what is called an Intellectual Property Portfolio (or IP Portfolio), a portfolio of copyrights for all of the work that they produce.
Why Do Brands/Magazines/Clients Want Your Copyright?
Since the copyright of any work produced automatically belongs to its creator, brands, magazines, and clients need permission from the creator to use the work. However, brands and clients tend to hold more resources, power, and leverage than individual creators, and so the standard contract they offer tends to look out for their own best interests, typically cutting out the creator with lines like: rights "in perpetuity throughout the universe" and/or through “any technology known or yet to be developed.”
Luque says, “Standard is not always fair. So these work-for-hires contracts for freelancers [may be the] standard way of doing business, but it doesn't necessarily mean that it's fair.” It is in the best interest for brands to increase or add value for themselves, and this usually happens by having as much intellectual property as possible (look no further than the sale of Quibi to Roku, or the controversy around the archive of Gawker, to understand the financial power of an IP Portfolio). While the copyright section in a contract may go by a variety of names, the crux of it is that in exchange for whatever they are going to pay you, the copyright of the work will immediately transfer ownership to the employer.
So What Is a Creator to Do?
Negotiating contracts can feel like going up against Goliath, but there are effective ways to protect your copyright. Luque acknowledges that part of it is based on the leverage the creator brings to a contract negotiation – echoing calls by others about the importance of building a personal brand and audience – but a basic understanding of the mechanics of copyright can also be extremely helpful.
He suggests two strategies to protect your IP Portfolio in the long term:
- License your work. Instead of signing over the copyright, a creator can license the usage of their works for a set amount of time (2 years, 5 years, etc.). This allows for the work to still be used by the client, but the rights to the work will still remain with the creator, and potentially allows them to continue to monetize their work after the license ends.
- Limit the use of your work. Instead of allowing clients to hold all the rights to any derivative of the work, a creator can limit its usage to a specific medium. For example, dictating in the contract that an article that can only be published in a digital format, or a graphic design that can only be used in the context of a pamphlet. This allows creators to retain control of their work and ensure that if any opportunities for derivatives of the work come up, they’ll be involved in the process.
There are some situations where retaining the copyright for the work you create may not be so important. Ultimately, Luque suggests creators consider “what are you giving up versus what are you receiving in return?” Product descriptions may not necessarily offer long-term value to the individual creator, and if the tradeoff is consistent work or a good paycheck, it does make better business sense to sign over all of the rights to the client. Clients may also provide access to tools and resources the individual creator could not get on their own, and in such cases, it may make more sense to consider sharing copyright.
Copyright is important to understand and protect when need be, because it can provide creators with additional revenue streams and opportunities to explore other creative opportunities. As a final word, Luque offers, “You shouldn't be afraid to ask your peers about their contract negotiations and to talk to them, because you're all in the same boat.” Sharing details about your own negotiations may help another freelancer with theirs, and could even convince a client to change their standard contract language.
Luque PLLC helps creatives and entrepreneurs achieve their dreams. They provide streamlined and practical business and legal planning to up-and-coming artists and entrepreneurs across the globe. They prioritize working with POC, woman, and queer-owned businesses they respect and admire. Luque believes business can be equitable and sustainable and they bring their values to every negotiation. They stand against social injustice by working with sustainable entrepreneurs and nonprofits. For additional information, visit www.luque.us.