Do you work by yourself or in a small team, producing written, graphical or audio/visual content for your clients? If so:
- Who owns the results of your work?
- Can you re-use the results of your work without your client’s permission?
Unless you have discussed those issues and come to agreement with your clients, there is a high probability of misunderstanding and subsequent disputes with your clients.
You may think that you are free to re-use the material that you produce. Understandably, you may consider that a growing library of completed work is an essential resource that enables you to develop your business and make it increasingly efficient.
On the other hand, your clients may think that they have the exclusive right to use the material you produce for them, giving them a unique advantage over their competitors.
You and your clients cannot both be right about this, hence the importance of having a clear understanding (in writing) before you even start work for a client.
What work products?
The work products that this article is relevant to include things such as:
- Written works, such as professional advice, research results, business plans, specifications and computer programs;
- Graphical works, such as illustrations, sketches, photographs, technical drawings and designs; and
- Audio/visual works, such as sound recordings and video content.
What rights apply?
Copyright is the law that governs the use of such works. It covers not only the right to make and use a copy of the work (including, for example, by constructing something from a design and specification), but also the right to adapt the work to another form and ‘moral rights’ protecting your reputation. Each of these is of potential economic value to you.
Contractor or employee?
If you work as an individual, rather than through a company or partnership, then in order to determine who owns the rights to the results of your work, first it is important to work out whether:
- You really are a contractor running a business separate from your client’s business; or
- You should be categorized as an employee of the client.
That can be a complex issue, which is beyond the scope of this article to address (but which we can advise on if required). However, it is important because:
- If you are an independent contractor, you own the results of your work unless agreed otherwise with your client; and
- If you are an employee, your client owns the results of your work.
Licence to use your work
If you own the results of your work, there is inevitably an implied licence for your client to use them for the purpose for which the work was commissioned. Depending on the circumstances, that may be a single use (e.g., plans for a building on a specific site) or many uses (e.g., an advertising jingle that may be used on multiple occasions in different media). In the latter case, it is important to have a clear agreement whether or not your client can produce different versions.
If you do not own the results of your work, you cannot assume that you are licensed to use it (e.g., as an example of your work on your website). You would need to negotiate a licence to do that with your client (when you accept its order).
To overcome any uncertainty about the right to use the results of your work, it is best to have your own terms of business stating that you own the results and defining the extent of your clients’ rights to use them. It is important that you don’t inadvertently ‘give away’ additional uses that you could charge separately for (e.g., in other media if you were producing something for a television program).
Sometimes, especially when you provide services to a large organisation, you may be required to agree to its terms of business, which may require you to assign (transfer) all rights in the results of your work to your client, thus preventing you from re-using them. In that case, you will need to decide:
- Whether you are willing to supply your services on those terms (or would rather refuse to do the work); and
- If so, whether you will increase the amount of your charges, so as to compensate you for selling your rights to the client.
Beware, in particular, a client’s purchase order that says that the client’s purchase terms override your terms of business.
Drafting terms of business
Atkinson Vinden can assist you by drafting comprehensive terms of business that will not only make clear your and your clients’ rights to use the results of your work, but also spell out important aspects of the way you will work together (such as variations in the client’s instructions, pricing, time limits, etc.), all with a view to minimizing the risk of subsequent disputes with your clients. Call us on 02 9411 446 to speak to one of our solicitors about protecting your valuable rights.