Do freelancers have a legal right to be credited for their work?
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 didnt 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 isnt 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 isnt 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 doesnt 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:
David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry, advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.
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