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Freelancers: who owns your work?

Usually, when we engage with a client - we accept to a certain extent that what we make, produce or provide will ultimately be owned by them. But, like most things when it comes to the law, there are some intricate details that actually extend beyond a commonly held belief. This type of distinction is particularly important for people who produce physical products or visual concepts, but of course, extends to copywriters and service providers. So, who owns your work?

Usually, when we engage with a client - we accept to a certain extent that what we make, produce or provide will ultimately be owned by them. But, like most things when it comes to the law, there are some intricate details that actually extend beyond a commonly held belief. This type of distinction is particularly important for people who produce physical products or visual concepts, but of course, extends to copywriters and service providers. So, who owns your work?

As a freelancer, chances are good that you are producing content that is considered to be creative and thus intellectual property in the broader sense. As a result, your work automatically has something to do with copyright and exploitation rights. At the same time, there is the risk that theft (and this is not limited to pure copying) takes place in all creative performances. The reasons for this are manifold: Sometimes a blog post is so tempting that a rewriting/copying of it might also increase your own reach. 

Sometimes illustrations are stylistically great, but the illustrator is too expensive - then the guideline is given "In the style of ..." and well, it can be a recipe for disaster! And this is something we should be diligent about when starting our business in general even alongside how much we should charge and so forth.

In fact, intellectual property is repeatedly disregarded. That this is in many cases neither punished nor nullified is probably also due to the confusion of our content world and the rapid rise of digital service exchanges. Prosecution of copyright infringements only makes sense if the financial or ideological interests are affected.

In the following, we focus on how to protect an intellectual property that you - for whatever reason - is important enough to want to protect. So, let’s take a look at what options you have and what the legal framework looks like here:

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What is that little C symbol anyway? 

Copyright is a right that entails various claims and options for action. The copyright does not have to be claimed. It arises in the moment in which a work is in the making. This means that your work does not even have to be finished and /or published in order for copyright to apply.

The work is defined as a personal when it is:

  • clearly revealing the personality of the author (which is interpreted very generously);
  • created by human creativity;
  • is perceptible by human senses;
  • represents a creative achievement.

Thus, all creative achievements are considered works insofar as their uniqueness or novelty is to be assumed. Serious similarities to existing works then pose a problem if the author of the very similar work can prove that you have "too much oriented to their work" - for example, have copied the stylistic means or techniques that make up the work. In practice, however, it is hard to prevent your intellectual property, whatever its form, from having similarities with other people's intellectual property. Incidentally, the term intellectual property is here equated with the process of creation and expression of the work.

All creative processes and designs related to (new) creative, technical or other achievements are considered intellectual property. If you act as a freelancer in a creative industry, then all of your works (that is, custom projects as well) are considered your intellectual property as long as you have a creative performance. A mere idea (without concrete form) is not worth protecting. Then copyright applies automatically. It is not transferable in German law. There is no way of giving or selling.

Many people like to use the copyright symbol © (in some ways that are so creative it could be copyrighted itself) to make their authorship more visible. However, it is not necessary. Authorship is self-evident in the moment in which you publish a creative effort. If it is published elsewhere, your name should be mentioned as the author, unless otherwise agreed. For all published works it can be assumed that unauthorized copying is a violation of law. Incidentally, the wording "All Rights Reserved" is more unambiguous and therefore more meaningful - but only if you still have all the rights to your work.

All in all, the © is actually kind of meaningless. However, it may be useful on websites and the like to point out the copyright - sure.. Although the legal norm is that ignorance can not protect against punishment, a brief outline of the legal situation makes your (especially online) published works less like fair-game.

Do your thing, not your taxes.
With Kontist.

Exploitation, Patents and Trademarks

Exploitation - a right: the exploitation right represents the right to exploit intellectual property. This is transferable - copywriters usually sell it, and other creatives rarely assume that they can exploit a work that arose for a client. The right of exploitation may be unlimited or limited and shall be defined by the author and the person acquiring the right of exploitation. 

For example, a writer might release their text for restricted use (the client can do what he wants with it), or insist that the text be published only once. The copyright is not affected. Also, no other person except the author may designate as the author, unless it is different and mutually agreed (hope you are reading this, CEOs, with ghostwriters, and so forth).

Protecting technical inventions: Patent law is a way to protect intellectual property that is capable of bringing about a technical innovation. This ensures that you are the only person who can bring about this innovation in this way. If someone else has the same idea, he has been unlucky. It does not matter whether or not he developed his idea independently of your work. To register a patent costs money and can be regulated by the patent office. 

The advantage lies in the fact that patent infringements can be punished due to standardized legal norms. In turn, trademark law gives you the opportunity to have your trademark legally protected. If you have invested a lot in your personal branding and this symbolic or pictorial is also presentable, it may be useful to protect this. You make sure that the brand belongs to you and nobody else can use a similar brand.

Prevention and Defense against violations

As far as copyright is concerned, most of the time you have a duty to defend it. This goes handing in hand with being responsible for literally everything when you are self employed. The only exception is if there is industrial property rights (by filing with the Trademark and Patent Office). The task of maintaining this legal protection, you can actually cede. Practically, however, this will hardly ever happen, insofar as you, as a freelancer, are primarily dealing with customers. Basically, intellectual property protection is only interesting if you produce classically - which often leaves the path of the creative.

If someone infringes the copyright, you can do different things. First of all, demand an omission. Urging to omit is in a sense your duty as the author if someone violates your copyright. It is also a prerequisite for initiating further legal action. If this is not done, a lawyer should be threatened. There are specialized copyright lawyers.

In the final instance, claims for damages would be considered, but they only make sense if demonstrable monetary damage has been caused by the infringement of copyright. Since the procedures here draw and sometimes cost a lot of money, you should put in the event of a copyright infringement rather on a cease and desist. On the other hand, if your intellectual property is willfully copied or robbed and subsequently used to make a profit, the legal situation regarding claims for damages is quite clear. You have to prove that your copyright has been violated and everything else is a matter of calculations and interpretations of the court. However, such procedures take a long time. It’s Germany, after all.

In such cases it can also happen that the customers to whom you grant a right of exploitation become active - after all, they too are restricted in their exploitation rights. However, you are no longer entitled to monetary compensation if the exploitation right has been assigned. In the case of infringement of patent or trademark law, it is usually less about copyright infringement than protecting your commercial interests. In these cases, a specialist lawyer is preferable.

How to prove that a work came from you

As far as copyright is concerned, the phrase "first come, first served" applies. This means that it can actually happen that someone steals your idea, executes it in front of you and then author. If you can not prove that you were about to do the same, you simply lost.

You can not completely protect your intellectual property from theft, especially if it is digitally and reproducibly available. Technology has made it easy to copy or "orientate" content. In fact, relatively much is copied, especially when it comes to display types (text and image). You can, however, make sure that it becomes clear that you are the author of a work.

For this, you can deposit your work in copy (or original) directly with a notary. If you find a copyright infringement, you can quickly prove that you are the author. This is especially valuable for non-client artworks, such as designing a stylish design, creating an illustration, or writing a book.

Another possibility is to publish your work immediately (via social media, for example) to unequivocally document the time of creation and completion. This gives you another way to use social media. Broad exposure of your works also protects your intellectual property so that others (your community or customers) can quickly become aware of copyright infringement and report it to you.

The sooner your works are suitable for monetizing them, the sooner they are actively worth protecting. So, if you work so that your intellectual property is especially important for the representation of your person and your activity, it may make sense to consider a lawyer. Of course, it is our hope no freelancer should face this kind of struggle, however, in the digital age, no one can be too cautious.