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This article is written by Shlok Bansal, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia(Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

The freelancing business, which is majorly related to the gig economy, has grown exponentially in recent years, particularly since the onset of the coronavirus pandemic and has witnessed continuous participation of the freelancing workforce.

Some estimates predict that gig workers represent around 35 per cent of the U.S. workforce in 2020, up from 14 to 20 per cent in 2014. That means roughly 57 million Americans currently engage in some type of gig work that contributes more than $1 trillion to the U.S. economy. Those figures are only expected to grow in the coming years and if you too wish to join this bandwagon, make sure you are aware of the intellectual property rights that a freelancer owns in his work. 

The idea behind this article is to educate you on the importance that intellectual property holds for any freelancer. The article also tries to lay forward proactive steps that you can opt to protect your interest as a freelancer. Finally, the article provides ways to seek remedies if your intellectual property right is infringed. 

What is intellectual property?

Intellectual property is anything that emerges from human intellect. This can be inventions, writings, ideas, artistic work, music, symbols, designs, or any other creation. It is an asset belonging to the original creator unless specifically given away.

Intellectual property can be protected through trademarks, getting patents for inventions, registering designs, and most importantly by copyright.

You should be mainly concerned with copyrights as the freelance workforce is generally involved with creative fields, be it technical, literary, or artistic like drawing, photography, painting, craft, musical composition, song, writings, graphic design, computer programming, or software development which are all subject to copyright.

Why is intellectual property important to freelancers?

You should know that when a person hires a freelancer to work on a certain project, that person will not own the intellectual property rights created by the freelancer during his project unless specifically given away by the freelancer.

As per the Copyright Act of 1976, the owner of the copyright is typically the person who created the “work” with an exception that copyright for “work-for-hire” belongs to the employer i.e., the rights in any work created by the employee under their scope of employment is automatically owned by the employer. However, this exception does not apply to the freelancers as they aren’t employees rather, they are independent contractors. 

The freelancers are entitled to hold copyright in the work authored by them hence, making them the owner of their creation. That essentially means they have the right to do whatever they please with their creation. Let us take an example where you as a freelancer write a book for a client. The client gives 3000 dollars to you for the book. The first-year client makes 15000 dollars from the book and you are okay with that. But the client reprints the book again and again or maybe even produces a movie out of it thus making exponential profits from your creation. This may hurt your financial interest and if you are not aware of your intellectual property rights you may be left anguished.

Mind concept of implied licenses

There will be a time when it is expected that you hand over the full rights in your work to the client. Suppose you work as a ghost-writer for a client, where you produce a piece of writing that will be published under the name of your client. Here you will be expected to hand over complete rights in your work to the client. There can be other instances where you have been sufficiently compensated for your work or you may have been working for charity. In such cases, it is expected from you to not only transfer the work but also all intellectual property rights associated with that work. Now the question arises what do you need to do in such cases?

It is advisable that in such cases you don’t engage with any client without a formal written contract. In an event where a freelancer and a client engage without any formal contract, the copyright law recognizes the concept of “implied license” in favour of the client. The law allows the client to use the work of the freelancer for the purpose for which they were engaged in the project. 

But more often than not the client might want to use the freelancer’s work for a purpose other than what the freelancer was commissioned to do and this might hurt the freelancer’s interest. Under such circumstances, freelancers have to resort to a legal course that does not have a clear-cut remedy and also comes with a hefty cost. Hence, it is always advisable to engage with a written contract, features and the ways to perform such a contract are discussed below. 

Ways freelancers can protect their intellectual property 

The best way to protect your intellectual property is by never engaging with a client without a written contract and including a detailed ownership clause in your contract. Some of the most important questions to ask yourself while structuring an ownership clause in a contract may include. 

  1. Do you wish to give away your intellectual property for eternity or do you wish to allow your client to use it only for a certain time?
  2. Do you wish for your client to mention you as the author of the things you created for them?
  3. Do you wish to give reprint rights or just one-time publication rights?
  4. Do you wish to license the intellectual property to your client? Do consider when will the ownership revert to you?
  5. Do you wish to grant universal rights in intellectual property or only limited to a certain region?
  6. Do you wish to keep a few rights in the intellectual property like the use of work in your portfolio once you transfer it to your client?

Other proactive steps that freelancers can take to prevent their intellectual property

More often than not, you as a freelancer while looking for work, will have to share your portfolio which is a reservoir of intellectual property with other parties. It might happen that clients may take your innovative ideas and simply run with them without including you in the project. To protect yourself from getting into such a situation you have to take a few proactive steps.

Research about your client

It might sound obvious but trust me when you’re looking for work desperately you might skip the most obvious preventive step which is to conduct a detailed research about your client. There might be chances that your client has the habit of stealing intellectual property. So, just be aware!

Don’t reveal too much

The solution to the above problem can also be, trying to not reveal too much. It might happen that to impress your client you give your client’s everything that you have in your store and the client might just run off and implement your ideas themselves. Just make sure you deliver only that information to your client that is critical to secure the deal. 

A non-disclosure agreement (NDA)

It is a great business tool that should be considered to protect intellectual property. If a potential client wishes to discuss ideas or strategies or requires your work samples before formalizing a contract, you should not be hesitant in getting a non-disclosure agreement in place to ensure that your innovative creation is not misused. Make sure the non-disclosure agreement is signed by both the parties and you mark anything you send to your client with a note stating “confidential”.

What to do if the intellectual property gets stolen? 

For freelancers, intellectual property theft is not something uncommon, in fact, for them, it is not a question of “if”, but a matter of “when” intellectual property will get stolen. If you freelance for long enough, there will always be a high probability that someone will attempt to use your innovative creation without your permission or without giving you any credits. 

When you’ll find yourself in this situation, I would suggest you escalate the matter slowly. It’s possible that the person committed intellectual property theft without intending to do so. If this is the case simply getting in touch with the person usually resolves the issues. If asking the person who committed the theft to stop doesn’t work, and the person is your client, you can send a letter or another email, with the attached copy of a signed contract between both of you as a reminder of what was agreed upon.

When your friendly gestures don’t seem to show any positive results, I suggest it is time that you send a cease-and-desist notice to the infringing party and show them your intent to take legal action if they don’t discontinue their offensive activities. Even if you don’t intend to sue the person who stole your intellectual property, I am sure the threat of a lawsuit can often be enough motivation for them to return or stop using the intellectual property. If that doesn’t get their attention, then it’s probably time to seek legal proceedings.

Conclusion

If you seek to be self-employed and look at freelancing as a career opportunity, let me remind you that freelancing comes with great risks as there will always be predators waiting to attack your rights. You will face the situation where a client might be unwilling to pay or trying to run away with your innovative idea but you can sail through all the odds and be that shining star if you remain proactive and educate yourself about intellectual property and ways of negotiating ownership rights with a client. You’ll never be an easy target if you follow the steps laid down in the article.  

References


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