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Learn how to navigate copyright and intellectual property ownership smartly so you own your work, and own your future.


How Mismanaging Your Copyright & IP Rights is Ruining Your Career as a Creative or Freelancer (And How to Fix It!)

Photo Credit: Money Down the Drain by Images Money used under CC BY 2.0

Photo Credit: Money Down the Drain by Images Money used under CC BY 2.0

As a freelancer, your work is your livelihood.

It’s your product, service and brand, all rolled into one.

And without a big business to hide behind, it’s just you and your creations on display for all the world to see. This is both the burden and the blessing of being self-employed.

Managing and protecting your work, then, is critical to your progress, especially when it comes to ownership and copyrights.

If you’re not controlling ownership of your work, you could be missing out on big clients, big paychecks and big opportunities.

Unfortunately, many freelancers and creatives are unnecessarily–and sometimes unknowingly–stifling their careers simply because they don’t understand copyright and intellectual property (IP) laws. Grasping the rules of ownership could make or break your freelance salary. So if you’re serious about your career, you need to recognize where you’re throwing money away, and then work to fix it!

I’ve identified the 3 most common copyright & IP errors, in no particular order, that lead to suppressed freelance careers and salaries.

1) Accepting Royalty Payments

First of all, you should never accept royalties as payment. I know, it sounds tempting, especially for those of you still trying to make your first mark. But hear me now; royalties are a rip-off. You should never make your income dependent on what the client does with the work after-the-fact.

Let’s back up.

Every freelancing creative has faced this dilemma at one point or another; myself included. We must all answer the question: “How much should I charge?”

At the beginning of a freelance career, it’s hard to bring yourself to charge very much for your work. The confidence simply is not there, nor is the portfolio of proof. So, naturally, your rates are low.

Like, eating ramen noodles for dinner every night, low.

Even if you’re in the infancy of your career, though, you may still be devaluing the worth of your work. True, you have some rights of passage to surpass, so-to-speak, but I’d be willing to bet that there are still a few ways that you could improve your salary right now. Eliminating royalty payments is number one!

Let’s say, for example, that you design a logo and graphics for a major local event. It takes weeks of brainstorming, drafting, editing and finalizing on your part. Then, you pass it all off to the client in exchange for royalties; a promise that you’ll get paid a percentage of every ticket that’s purchased for the event.

Really?

What if the client does a poor job of advertising and promoting their own event? What if they have no following and the event is a total bust? What if something falls through and the client has to cancel the event altogether?

Can you see the many possibilities for you to not get paid, over something that may be completely beyond your control or have nothing to do with your efforts and work? That doesn’t exactly sound like the life of an established freelancer, now does it?

The bottom line is, don’t ever devalue the worth of your work by taking royalties as payment; even at the dawn of your career. You deserve more credit than that and you deserve to get paid up front. By demanding it, you’ll establish yourself as a freelancer who means business.

2) Not Charging More for Copyright & IP Ownership

In addition to taking royalties, many creatives fail to understand that they should be charging more for copyright & IP ownership.

Some of your clients may be getting more ownership savvy by requiring that you actually sign a contract ensuring that you transfer copyright ownership to them upon completion of the project. They prefer that you do your work as a ‘ghost’ and give them credit for it, in the end. This is more and more common among freelance writers in particular. There’s nothing wrong with working as a ghostwriter, so long as you’re charging more to hand over the copyright ownership.

In other words, if you would normally charge $700 for a project, but the client has asked for full ownership upon completion, then you should charge an additional fee for relinquishing your ownership rights. If they want it, they should have to pay for it.

There are a number of ways to charge the additional fee. You may charge a flat-rate fee for any client wishing to take copyright & IP ownership, no matter what the project is. You can also do it on a sliding, percentage-scale. Say, 5% of the total fee, for example.

Regardless of how you handle the logistics and specifics, just make sure that you are making the client pay for ownership. After all, you ARE the intellect behind the work. Never surrender that to somebody else without getting fair compensation for it in return. Again, not only will this give your immediate paycheck a boost, but it will also help you establish a reputation as a freelancer who takes herself seriously. And when you do, so will your clients and prospects.

3) Not Taking Any Credit

Finally, take some credit!

I know; I just finished telling you how to properly give away ownership of your work. But that should be balanced with projects and work that you can put your name on!

If you’re resolute about your freelancing career, then I assume one of your goals is to be a regular, named contributor, or to have your artwork and name blasted on a major brand somewhere. It’s an admirable goal, and one you should aim for sooner than you probably think.

There are plenty of opportunities out there for aspiring freelancers who are looking to advance their careers with jobs and projects that will give them full credit. You don’t have to be a 10-year veteran to land these awesome gigs. If you’re not looking for, and applying for, projects that will give you full credit, then you don’t understand this industry yet. And you’re not taking full advantage of its potential.

Start with what you know best. Do you have a specific niche or industry that you want to focus on, have more experience in, or are educated on? If so (and you should), find a blog, column or newsletter devoted to that topic, and apply to be a guest blogger, columnist, or artist. You can also look for affiliate programs in your industry. These can be powerful venues to land a few paid gigs, get some widespread credit for your creations, and maybe even acquire some ongoing work.

Again, the specifics aren’t important here. Just know that you deserve credit for some of your work, and there are plenty of avenues for obtaining jobs that provide just that. Having published work, with your name on it, is one of the best things you can do for your freelance career. And the more credit, the better. It shows that clients and businesses have trust in your work and expertise.

It also helps with Google searches. As a freelancer, your name is important. Folks may be searching for you by name and if they come across published work with your signature on it, then you instantly get street cred for appearing legit.

What’s it all mean to you?

Mismanaging your copyright and IP rights could quickly snuff out the candle that is your promising freelance career.

The common enemy of both freelancers and their clients is not knowing enough about copyright & IP rights to navigate them smartly – that’s where Kunvay comes in. We help you increase the value of your creative and freelance work by helping you offer clients the option of acquiring full copyrights and IP rights to your work. These simple rules of thumb will give your paychecks and career a boost!

Because you want to navigate copyright & IP smartly, follow us on Twitter.

About the Author: Erica Gardner holds a graduate degree in Legal Studies from Kaplan University and served in the Army with the Military Police. She now has a budding career writing content marketing pieces for attorneys and entrepreneurs across the globe.

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  • TheInternetGuy

    Sir, you were not ‘forgotten’ out of $1,000, they never intended to pay you in the first place. Think about it, you never knew who the winner was (or if there was one) but you were offered a measly $1,000 on a take-it-or-leave-it basis (who does that?), giving you no further options. That’s incredibly unusual, especially given a 72-hour period to decide?

    When you decided to hand over the IP they probably collected the large sum from whatever company launched the challenge and their job was finished, leaving no reason to actually pay out the fees since you had signed a contract transferring the IP. The hiring company probably has no clue of what happened and this should not reflect negatively on them.

    Sadly, that’s how some businesses are run.

    • Reggie Solomon

      It’s true. I never did find out who the actual grand prize winner was; I wish there had been more transparency around that. It would definitely have improved my confidence in the process.

      The actual IP however was never formally transferred to them because they never followed through with the actual prize award rendering the transfer incomplete. That’s actually, one of the saving graces of the whole experience reflected in point #2 of lessons learned.

      Thanks for chiming in and sharing your thoughts. Much appreciated.

  • Juan Mario Inca

    Really interesting Kunvay, thanks ​!

    Given your interest, I think you’ll be very much interested in this list of emerging Open Innovation research: http://www.openinnovation.eu/07-05-2013/768/

    And in this new research too:

    - The Contours of Crowd Capability
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324637

    Powerful stuff!

  • Will Tennant

    Registering the copyright is required prior to bringing an infringement lawsuit.

    • airtonix

      um no?

      Perhaps you are thinking of trademark or patent.

      Copyright is given the instant you create the work.

      • Will Tennant

        True, But See Copyright Statute Title 17 Section 411 requiring registration prior to bringing lawsuit.

        • John Feminella

          If you’re the author, you don’t need to register beforehand. Otherwise, registration is required. The law is very clear on this — it’s the very first part of the relevant section. See §411:

          **Except for an action brought for a violation of the rights of the author under section 106A (a)** [...] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

          Then §106A says:

          the author of a work of visual art [...] (1) shall have the right [...] (A) to claim authorship of that work, and [...] (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

          So, in this case, since Mark’s client is ripping off the work and presenting it as his own, registration would not be required since the original author is bringing the suit.

          However, even if you don’t need to register, you may want to do so anyway. That’s because the law requires courts to presume that a plaintiff who has a registered copyright is the holder of that copyright. So a defendant would have to prove that the registration certificate is in error, fraudulent, or otherwise not accurate.

          • Will Tennant

            This is true if you’re claiming a 106A right of attribution or integrity. The famous artist Anish Kapoor, for example, would not appreciate someone taking credit for his work, or suggesting he authored the work of another. However, my comment was with respect to copyright infringement. If Mark’s client is ripping him off by copying or reproducing the work, which is Mark’s exclusive right, then 106 applies. Most of my clients are in the former category and whether it’s a picture or web-design, etc., they’re just looking to get paid for the work they do.

          • Richard_M

            Registration within 90 days of first publication grants the copyright holder the right to recover attorney and court costs. This is what puts teeth into copyright laws. It is true that copyright is given the moment a writer expresses their work. It is also true that not registering within 90 of first publication is not a good business practice.

  • Heather Cuthill

    This is a classic example of why artists should always insist upon a written contract from every client: you’ll get paid, you’ll protect your rights in your own work, and you’ll save yourself the hassle and the costs of trying to get paid through the courts – which may end up losing you money even if you’re successful. Here’s a contract template that is comprehensive and easy to customize for each of your graphic design projects: http://www.megadox.com/d/22.

    • Mo Kane

      Having a written contract is meaningless. Have you heard of breach of contract? If the client is not going to pay because they never intended to, having a piece of paper will not obligate them to do so. If the design work was done for a pitch and the client didn’t get the project, the client may not have the money to pay subcontractors like the designer. Not his fault. See my other post as to what to do next (TL:DR:Nothing).

      • Heather Cuthill

        You can always ask for money up front – either a deposit of 50% of the contract price payable at the time the contract is signed, or the full contract price to be placed in escrow or trust until completion. Clients who intend to honor the contract should not have a problem with that.

        • Mo Kane

          A 50% deposit is an excellent idea. But if the client is going to rip you off, all you are going to get is the 50%. Placing the money in trust requires a cooperating attorney that both sides agree upon and adds cost. The trust department of a bank won’t do this; they would need a trust instrument, etc. I am unaware of any commercial escrow services though this is a good idea as well, can you suggest any?

          • Heather Cuthill

            There are a number of online escrow services, such as Escrow.com. Their fees are typically based on the dollar value of the transaction. It’s the most cost-effective way I know of – a lot cheaper than a lawyer.

  • I’ve been a prayin.

    Why on earth would you do $1000 worth of work without a contract? Of course it’s heinous on the part of the contractee to not pay, but you should do what you can to prevent being taken for a ride.

  • Will Tennant

    (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

  • Mo Kane

    So much for the law, what about the reality of the situation? What happens, say, if there was a contract and the client simply refused to pay? What should the artist/designer do? Assume further that the contract was for $1000. You will not get an attorney to represent you in small claims court for less than $250. And that doesn’t include filing fees and subpoena fees. Figure on at least one continuance. And then your attorney will ask for more money for the second hearing. Assume you win. Now you have a judgment. Do you know where the client’s bank account is? Do you have the client’s bank account number? No? Then you have to pay someone to find it. That is not necessarily cheap, either. Can you garnish your client’s bank account? Sure, if you know where it is. But you have to file a separate proceeding. Your attorney will charge extra for that. At an absolute minimum, you’re at $750 in attorneys fees, not including the costs of filing the new case, the costs of service on the bank, etc. And don’t think that even if you get all the numbers right that the bank is going to simply mail you a check. No, they may very well answer and wait for yet another court hearing. Or your client, who may well be a small business like you are, simply lives paycheck to paycheck and there’s not much money in the bank either. Now what? Seize the client’s car? It’s probably a lease. You mean you didn’t get a full financial statement from the client when you started working on the new project? How much time have you spent on this collection effort? And in the meantime, you have opportunity costs because time spent on the lawsuit(s), just like time spent on the original project, is unrecoverable. You could be working on something else. My advice: if the amount of your bill is less than $5000, chalk it up to experience. In the future, insist on a down payment. That’s one way to cover your loss. Tell the client that you will not hesitate to truthfully inform anyone who asks that he has not paid you. This is a somewhat obscure reference, but when relatively small amounts of money are involved, trying to collect on a debt in the United States is like Captain Kirk’s comment on the Kobayashi Maru: the only way you can win is not to play the game.

  • Mo Kane

    For some reasons everyone’s comments seem to be repeated under separate posts. My comments about whether the law protects those who have been swindled for small amounts obviously does not apply to situations such as Winklevoss v. Zukerberg.

    • http://www.kunvay.com/ Kunvay

      Sorry about that Mo. There seems to be a Disqus bug. We’ll get fixed this week. Thanks for the note.

  • mr.t

    What if you worked for a large company as an artist and began working with one of there biggest clients producing original artwork for them wich was being printed on tshirts. Wich was and still is being produced and making lots of profit. You only worked on the clock hourly and left the company after some time. You never signed anything at all stating anything about royalties or copywrites. You have the proof that these are your works. Are you entitled to any royalties or rights about these works of art in the fact these have generated thousands of dollars and you are left pennyless and kicked to the curb?

  • Oliver Gerasimov

    I think that’s the most freelancer risk because most of them worked in a client without written contract. But thanks for sharing this post at least they will know that they have the right to claim their work.

  • Paul Thomas

    As a photographer, I needed exclusive ownership of my work. After some extensive research I found out about this firm called Levy, Levy & Sosa in Miami. I decided to set up a consultation to meet with their attorney and I’m sure glad I did. They assisted me with applying for copyright registration, the process was so simple and they guided me along the way, explaining in ways that were easy to understand. I encourage you to contact them on 1-800-464-5554 or visit their website http://www.trademarklaw101.com/practice-areas/copyright/ to secure your work!

  • Tony

    Can someone tell me the legality of creating a shirt (not for resale) that says something like “Pepsi is Shit”. Would that be illegal if I am not selling it? Thanks in advance.

    • http://www.kunvay.com/ Kunvay

      Hi Tony – Good question. If you created a t-shirt that said “Pepsi is Shit” that would constitute an expression of opinion and would be protected speech. Pepsi wouldn’t like it, but you could sell a shirt with that message. Just be sure not to use the Pepsi logo; that’s where you could get into murky waters.

  • Gerrie7407

    If I decide to print 20 t-shirts for a concert, am I allowed to print the artist logo on it ?
    Example a Justin Bieber logo with a face ? what the legal implications

    • http://www.kunvay.com/ Kunvay

      Gerrie7407 – If you print someone else’s logo on a t-shirt for sale, you would unfortunately be violating the logo owner’s copyright. The legal implications are if the logo owner saw the shirt and was able to trace it back to you or your company, you could be liable for damages. You could take the risk that the logo owner wouldn’t find out given how large the Bieber brand is and the unlikelihood that they’d find you, but you’d be taking a risk.

      Below is an article with a 4-part test to determine “fair use” vs. “copyright theft. http://blog.kunvay.com/copyright-theft-vs-fair-use-how-to-determine-if-your-work-has-been-stolen-or-adopted-for-fair-use-with-a-4-factor-test/