Thanks to all your hard work, your latest client is thrilled with your work. They paid in full and wrote a glowing referral.
You’re so proud of your work, you immediately go to add it to your portfolio.
But then you stop…
Are you allowed to do that?
You did the work, but it’s for the client’s business…
Who really owns it?
This post will cover the default rules about who owns work you make for a client and go over options that you can add to your contract to change the default rule.
Who owns work made by a freelancer by default?
US copyright law states that the person who created the work owns the work. The “author” of the work is the automatic copyright holder for that work.
"Work” in this context means anything you produce as part of your service. This could be a logo, Canva templates, email copy, a strategic plan, social media content… if you made it, you own it.
The work is considered your intellectual property. Your ownership of the work includes the intellectual property rights (including the copyright) of the work.
What if there’s a “work made for hire” clause in my contract?
Some contracts specify that any work produced by the freelancer is “work made for hire”. This means that the work is commissioned by the client – it wouldn’t be created if the client didn’t ask for it. It is an attempt to transfer ownership of the copyright for the work to the client.
Work made for hire clauses are not always effective because “work made for hire” has a very specific definition under copyright statutes.
Assuming you’re not an employee of the client, your work can only be considered “work made for hire” if it meets the following conditions:
1. Your client specifically ordered or commissioned your work;
2. Your work was commissioned for use as one of the following:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work (to another author’s work, such as a foreword, chart, or table)
- a compilation
- an instructional text
- a test
- answer material for a test, or
- an atlas;
3. Your contract with your client explicitly states that your work is a “work made for hire.”
Under this definition, copy or graphics for a video sales letter could be work made for hire as part of an audiovisual work.
The most likely categories your work would fall into would be a contribution to a collective work or a compilation, and sometimes a supplementary work. Unfortunately, these terms have not been defined well enough to definitively say whether a blog post, email newsletter, advertisement, or other end work your work may be part of can be considered a collective work or compilation.
Rather than stating in your contract that your work is “work made for hire”, your contract should include language specifying who the owner of the work is and any licensing rights or assignment granted in the contract.
Licensing and Assignment in a Contract
The best way to know who owns a work is to put it right in your contract before you even start.
Your client will likely have an opinion on who should own the copyright and what license, if any, should be granted in the contract.
For example, a client would very likely want complete ownership of a logo you create for their business. They would probably also want ownership of their website copy and design.
But there are other situations where the client may be fine with a license. You should always negotiate ownership with your client, and you can even use it as leverage in negotiating price.
Here are a few options you could discuss with your client and add to your contract to clarify matters of ownership and license.
License exclusive rights of first use.
Your client may want the exclusive right to use the work up until the publication date but not care as much afterward. For example, a client would not want sales copy for a launch showing up somewhere else before the launch date.
In that case, you could grant an exclusive license for first use and specify the nature and timeline of that first use in your contract. Their license would only last until that use was over, and you would retain full ownership of the work.
Grant a license for additional uses.
If the work is intended for a one-time publication and the client does not intend to re-publish, you could grant a license limited to that first publication. You could also include an option for the client to use the work again in future re-publication after paying a fee. That way the client wouldn’t have to pay for the additional use upfront but would still have the option to re-publish if they decided to in the future.
License all rights for a limited time.
If the client prefers full rights not restricted to a certain publication or specific use, you could license all rights to the work for a specific period of time. Your work may have a limited period of usefulness to the client, such as during a certain advertising campaign or product launch, after which all rights would revert to you.
Grant a non-exclusive license of all rights.
If you want to be able to use your work in your portfolio or as a sample to present to other potential clients, make sure this is included in the contract. You can do this by granting a non-exclusive license, which means the client is not the only one allowed to use the work.
The client would likely prefer their license to be exclusive so you can’t go sell the work to a competitor or another client. In that case, you can either put limitations on your use of the work – that you won't use the work for commercial purposes or sell it to a competitor – or you can grant an exclusive license with specific exceptions – that you reserve the right to use the work for self-promotion.
Assign ownership rights.
Some clients will insist on owning the work outright. In that case, your contract should include an assignment of the work to the client. You may be able to increase your rates for the transfer of full ownership. Also make sure to include a license from the client to you for use of the work in your portfolio, as a sample, and however else you may want to use it. Without that license, after you transfer ownership you can’t use your work at all.
Protect yourself before you wreck yourself
No matter what kind of license or assignment you include in your contract, always make it conditional on full payment. When the license or assignment is conditional on full payment, the client doesn’t have the right to use your work at all before you receive full payment.
This means that if the client doesn’t pay, you can sue for breach of contract and copyright infringement. If you don’t make the license or assignment conditional, you can still sue for breach of contract, but you won’t have the additional protections the copyright statutes provide, including statutory damages, an injunction to make the client stop using the work, and attorneys’ fees.
You also always want to include an explicit provision allowing you to use your work for your portfolio, to show samples to potential clients, and other self-promotion uses. Never assume the client will be okay with this or that it’s allowed.
If in doubt, get it in writing!