What rights do freelancers have when their ideas are used by an agency and they’re not credited for the creative work they produce, asks David Walker, founder of Grid Law.
This was the topic of a conversation I was involved in recently and judging by the comments and depth of feeling, it’s an extremely common occurrence.
The creative director was clearly thrilled with the freelancer’s work as it helped him win a global pitch. However, he didn’t give the freelancer any credit for it and this became a contentious issue. The freelancer was concerned that without proper credit for their work, it would be much harder to win more business in the future.
So, by law, does a creative director have to credit the freelancer for the creative work they produce?
The simplest way for a freelancer to ensure they are given full credit for their work is to make it a condition of their contract with the creative director’s agency.
If the creative director refuses to include such a provision in the contract, it’s clear that the freelancer isn’t going to receive any credit for their efforts. They can then make an informed decision as to whether they wish to work for this particular creative director or not.
Now, contracts aside, is full credit for their work a legal right freelancers have?
As is often the case in legal issues, the answer isn’t a clear cut “yes” or “no”.
To determine what rights a freelancer has in any particular situation we need to break the problem down and work through it step by step.
The first step is to identify what legal rights protect the creative works.
This is an easy question to answer. Creative works, whether they are graphic designs, written works or even computer code are considered to be artistic or literary works and are automatically protected by copyright laws as soon as they are created.
However, it’s very important to understand that copyright only protects the expression of ideas, not the idea itself. So, if, for example, the freelancer was hired to brainstorm ideas in a group meeting they would not be producing any work that was capable of being protected by copyright.
Even if the freelancer’s ideas were subsequently developed and incorporated into the creative director’s pitch, the freelancer would have no automatic right to ownership of them. There’s also no automatic right to be credited for coming up with the ideas.
In this situation, the freelancer would be acting more like a consultant and would simply be paid for their time, ideas and experience. The only way they would be entitled to any credit for their ideas is if this was specifically agreed in the contract between the freelancer and the creative director.
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Assuming the freelancer is actually creating works that can be protected by copyright laws, the next step is to understand who owns them.
This is important because copyright laws give the owner the right to decide how the works are used and whether any conditions are attached to such use. This means that the owner (the freelancer) can make the creative director’s use of the work conditional on full credit being given.
A point that is often overlooked is that in some situations, copyright laws also give the freelancer additional rights known as “moral rights”.
These moral rights include the right to be identified as the author/ creator of the creative works. This is known as a “right of paternity” but it doesn’t apply to all copyright works. Important exceptions include computer programs, the design of a typeface or any computer generated work.
So, unless an exception applies, a freelancer does have the right to be identified as the creator of the works but they must assert this right and they must do so promptly. If there’s any significant delay in the freelancer asserting their right to be identified as the author/creator it will count against them in any future legal dispute.
This is why, if you look in the front of most books, you will see a statement 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.”
Therefore, if the freelancer wants to rely on these moral rights and be credited for their work they must explicitly tell the creative director from the outset and ensure this is written into the contract.
Although freelancers do, in many situations, have a legal right to be credited as the author or creator of their works, the terms of their contract with the creative director’s agency can change this position.
Common provisions you will find within a contract (especially if you are using the agency’s standard terms of business) include an assignment of intellectual property rights. This means that ownership of the work is transferred from the freelancer to the agency. If no conditions are attached to this assignment, the creative director is then free to decide how and when the works are used.
In conjunction with this assignment, there is often a moral rights waiver clause. As the name suggests, this is a waiver of the freelancer’s right to be credited as the author or creator of the works.
Often, these clauses will be accepted without giving them any real thought. This is why it’s crucial for freelancers to read and understand the terms of any contract they are asked to sign.
So, as we have seen, freelancers often do have a legal right to be credited for their work but this right is easily lost if it isn’t asserted or if it’s waived. Therefore, freelancers who want to be credited for their work must raise this as an issue as early as possible when discussing their terms of engagement with the creative director.
If you have any questions about any of the issues I have raised in this article, please feel free to email me at firstname.lastname@example.org and I will happily answer them for you.
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