Following his recent article on the right of freelancer’s to be credited for their creative work, Grid Law founder David Walker clarifies whether asserting moral rights can offer valid protection.
Thanks for your article “Do freelancers have a legal right to be credited for their work”.
Is there a sentence or paragraph, like the one you mentioned, that freelancers could put at the end of their emails and at the bottom of invoices so they can assert their moral rights in any creative work they produce?
NB: The sentence that I mentioned in the article is an assertion of moral rights that an author would usually include in the front of a book. Something along the lines of:
“[NAME OF AUTHOR] asserts his/her moral right to be identified as the author of this work in accordance with the provisions of the Copyright, Designs and Patents Act 1988.”
Thanks for your question.
On the face of it, this seems like a simple solution to the problem of freelancers not being credited for the creative work they produce.
Unfortunately, in reality, I think it’s unlikely to help and I’ll explain why.
When an author asserts their moral rights in the front of a book, it’s clear that they are identifying themselves as the author of that particular book and the statement can be seen by everyone who reads it.
If a similar statement was made in an email or on an invoice, it would only be seen by the recipient of that email or invoice and it may not be clear what work they are referring to. Also, to gain any benefit from making this assertion, the freelancer would still be relying on the agency’s creative director to give proper credit for the work produced.
If they didn’t, the freelancer would then have to enforce their rights, potentially by taking legal action against the agency.
However, before taking any such legal action the freelancer would need to ensure that they hadn’t waived their right to be identified as the author/creator of the work. As explained in the article, a moral rights waiver is an extremely common contractual term and this would override anything stated in the email or on the invoice.
For argument’s sake, let’s assume that the freelancer hadn’t waived their moral rights, they had asserted them in an email to the creative director but the creative director still didn’t give proper credit. What should the freelancer do?
Unfortunately, it’s highly unlikely that the freelancer will get a satisfactory result from taking legal action against the agency.
To be successful, the freelancer will have to prove that their business has been damaged by not receiving proper credit for the work they produced. Gathering enough evidence to show that a lack of credit is the sole or main reason why a freelancer has missed out on future work is likely to be almost impossible.
Even if the freelancer can prove that their business has been damaged, the amount of compensation they are likely to recover will be low.
Damages in these “loss of chance” claims are usually a percentage of the loss the freelancer is likely to have suffered, and if you cannot say with any certainty what value the future work would have been, the court will award a very low amount. When you consider the time and costs involved in pursuing such a claim, it’s never worth it.
What’s the alternative?
Freelancers need to stand up for themselves and address these issues before starting work on a project. If the agency says they won’t give them credit, the freelancer has a choice. It’s up to them whether they continue working for the agency or not.
One comment I received on my previous article was that this was fine in theory, but often the freelancer has started work before contracts have been finalised.
I accept that this often happens, but if the issue of giving proper credit hasn’t been discussed, the freelancer must accept that they are exposing themselves to a greater risk that they won’t receive any credit for their work.
However, the freelancer is by no means powerless. The agency is at risk too. The freelancer is in a strong negotiating position because with no contract in place, they will own all the intellectual property rights in the work they produce.
They can dictate the terms on which the agency can use their work. They can demand that they will only grant permission to use it (or assign it to the agency) if proper credit is given.
Obviously, there’s a risk that if the freelancer makes such demands, the agency will terminate the engagement. With no contract in place, the freelancer is then unlikely to be paid for any work they have produced up to that point.
But remember, if the agency has a tight deadline to deliver the work to their client, it’s going to be hugely inconvenient for them to find another freelancer to take on this project.
Now, I fully accept that having this sort of discussion after the project has commenced is not conducive to a good working relationship, so, my best advice is to address these issues as early as possible.
If I can help any further, please feel free to email me at firstname.lastname@example.org.
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