If you’re a freelance writer, you’ll be writing for other people or businesses  like newspapers, magazine publishers or blogs. Disagreements can arise about who owns the copyright to your writing: you may be free to use the work for other purposes, or you may not. Unfortunately, the answer is not always clear. This article explains when you own the copyright in what you create, and when you don’t.

Freelancers Own the Copyright in Their Works

As a starting point, copyright exists in original written works and is owned by the creator — or author — of the work. Therefore, if you write an original work such as an article, report, script or interview, you are the owner of that work.

However, a written contract can transfer these rights to another person or business. If you are a freelance writer or independent journalist, check your contract carefully. It will contain details about who owns the copyright in the material you write, and when and how the material may be used. It’s also possible to negotiate the terms on which you are offering to license or publish your work with a publisher.

Determine if You are a Freelance Writer or an Employee

While freelancers generally own the copyright in what they write, employees do not. Instead, employers are likely to own the copyright in works created by an employee during the course of their employment. 

It’s not always clear if you’re a freelancer or employee. However, factors that indicate that a person is an employee include:

  • a regular salary;
  • PAYG deductions;
  • superannuation contributions; and
  • the employer provides equipment and resources to carry out the work.

If you’re unsure about your status as a freelancer or employee, it’s important to get advice. Particularly so if you’re concerned about the use of the material you create and want to set the terms on which your publisher can reproduce and use your writing.

However, a unique exception exists for journalists employed by a newspaper or publisher. While their employer owns the copyright in their articles as published, the journalist retains the copyright in their work for other specified purposes, such as reproduction in a book.

Transferring Ownership of Copyright to the Publisher

As a freelance writer, a publisher may ask you to sign a contract transferring ownership of your copyright. It’s important to understand what rights are transferred to the publisher. To transfer the ownership of copyright to another, the Copyright Act requires the transfer be in writing. This transfer must identify the new owner of the copyright and include their signature.

However, even if you don’t sign a transfer, the publisher can still use your writing. Copyright law recognises implied rights in favour of a publisher or creative business engaging a freelancer. This right is an implied licence to use the works for the purpose for which they were commissioned. However, the right does not extend to other purposes that the parties did not consider. 

For example, a creative agency hires a freelance food critic to review a new restaurant for the agency’s website. The law implies that the agency can publish the review on its website. However, the agency could not use the review in a published magazine if the freelancer had not previously agreed to this. 

The Author’s Moral Rights

The Copyright Act grants moral rights to all authors, including freelancers and employees. The author will retain their moral rights even if they have licensed the work to a publisher. The three moral rights are the rights of:

  1. attribution;
  2. against false attribution; and
  3. integrity.

 

Moral Right Explanation
Attribution The right to be identified and named as the author of the work
Against false attribution The right to stop others from being falsely credited for the work
Integrity The right to ensure the work is not subject to derogatory treatment that harms the author’s reputation

 

Key Takeaways

As a freelance writer, you do not need to register or pay fees to get copyright protection over your work. As the original author, you own the copyright. You can transfer ownership of your copyright with a written assignment or licence. However, even if you do this, you’ll still retain moral rights. It’s important to check the terms of your contracts with clients and publishers to understand how they will affect your rights.

If you need advice on your copyright ownership as a freelancer, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Elodie Somerville
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