To Share or Not to Share, That is the Question

Rita Lewis |
Business & Finance
| October 1st 2009

Copyright is as old as printing and as new as today. As freelancers, whether writing, designing for print or the Internet, broadcasting, filming, or creating music, you should be aware of your rights of ownership of your work as well as when you actually can’t retain full ownership — the down side of selling your work for a living.

Note: You cannot copyright an idea or name, only an actual creation; and the item does not have to be published to hold a copyright. The minute you create it and even if you don’t mark it with a copyright symbol, it still is fully owned by you.

Basic copyright law as of 1976 and its various amendments, up to and including the Digital Millennium Copyright Act (DMCA) of 1998, is a broad-based set of statutes that grants you the right to full ownership of your creation. When you own something, you have the right to rent or sell it and make an income that should lead you to create more. Ironically, the right to copy and sell your work, as stipulated in the first copyright law signed by President George Washington in 1790, was good for a 14-year period with one renewal of an additional 14 years. It was passed to further creativity since at that time the thought, as pushed by the “Father of the Copyright” Noah Webster, was that if you own something that is valuable, you’ll prosper by it and so create more.

As we have moved deeper into the 21st century, there has been a lockup of creative materials by more and more stringent rules for usage as well as a lengthening amount of of time a work is protected and thus not open for use by others. (As of today, according to a great article in Wikipedia titled United States Copyright Law, “works created in or after 1978 are extended copyright protection for a term defined in [Federal Code] 17 U.S.C. § 302. With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.”)

Will there come a time when we lose the ability to innovate and create because all of the original concepts for art are owned in perpetuity by someone? Even now, there are law suits against sampling, derivative literature, and such. In such an environment as this, copyright has the opposite affect of stifling innovation and creativity.

I like to use a wonderful short story called “Melancholy Elephants” by Spider Robinson who postulates in this Hugo-award winning piece that in the future every single creative work in the world will be copyrighted and that copyright lasts forever, thus new creations or innovations in this dystopia dry up. It is a chilling and wonderful way to explain the straight jacket of standard copyright. You can read the story on Spider’s website.

This article explains how to use a new type of Open Source copyright legal marking and license to open up your work in a controlled fashion so that you and others might benefit by sharing without compromising your income.

What is a Copyright?

When you post the following statement:

… you are stating that you own all the rights and privileges to your work, period. You are protecting yourself from anyone who tries to “make and sell copies of the work, publicly show the work, import or export the work and assign these rights to others.” Notice that you are protecting your work, but not the ideas behind the work.

The following types of work are protected by copyright.

Original literary works (novels, instruction manuals, computer programs, lyrics for songs, articles in newspapers, some types of databases, but not names or titles)
Original dramatic works, including works of dance or mime
Original musical works
Original artistic works, e.g. paintings, engravings, photographs, sculptures, collages, works of architecture, technical drawings, diagrams, maps, logos
Published editions of works, i.e. the typographical arrangement of a publication
Sound recordings, which may be recordings on any medium, e.g. tape or compact disc, and may be recordings of other copyright works, e.g. musical or literary
Films, including videos
Broadcasts.

The moment you commit a creative endeavor to paper or web, CD or computer file, it is copyrighted. The mark shown above is a warning to your viewers that the work is protected.

Copyright law provides a limited use clause called “fair use.” This is a loophole through which free libraries, educators, universities, commentators, bloggers, critics, and journalists may quote with proper attribution, from a copyrighted work. The definition of what exactly constitutes fair use is a murky topic that is still being debated in courts.

Freelancing and Copyright — An Uncomfortable Arrangement

When Congress last amended copyright law in 1976, they added a clause that causes problems for freelance artists, writers, and designers. Basically, the law gave copyright ownership to the ”author” of a creative work as long as it was not a ”work made for hire,” in which case the copyright belonged to the organization for whom the project was executed.

Corporations such as publishers of newspapers and magazines went to court to protect their rights to withhold royalties from freelancers under an argument that the work was done “for hire” and not that the author loaned the work for publication; and these battles are still being waged.

In 1989, one of these court battles made it all the way to the Supreme Court who ruled in favor of freelance artists on commission. This is a huge win since it stated that freelance artists in most instances can keep the benefits of copyright, which include licensing and reproduction rights and protection against unauthorized copying. The decision also poses practical problems for businesses that rely heavily on freelance work.

What These Rulings Mean For Freelancers

For freelance graphic designers, it is very important that the ownership status of your work is explicitly spelled out for each project step. This makes your contract with your client not only an agreement, but your legal “Bill Of Rights.” To ensure that you have properly expressed your rights of ownership, be sure you include at least these ownership retention items:

Original Art: Make sure you own the original artwork objects that were used to make the finished product you give to your client. The completed project is typically owned by the client, but the photographs, composites, Photoshop manipulated files, and so forth should be clearly stipulated as belonging to you as the creator. If your client wants all the original art that went into their commissioned piece, make sure you set a price at which you will sell them these assets.
Preliminary Designs. Make sure you are clear in the contract that the designer retains ownership of all preliminary designs. This is a protection for you in case the client cancels the commission and you’ve worked hours on your designs. You can then charge a fee if the client does not return the designs in a timely fashion stipulated in the contract.
Promotional Materials. Make sure to include a statement in your contract that you have the right to use what you deliver as promotional pieces or in your portfolio.

Note: There is a movement to make such contract clauses as suggested above replace copyright as the legal statement of ownership.

Check out the article on Copysense about the importance of Preemption, Contracts, Licenses, and Consumer’s Choice.

So far in our discussion of copyright and the freelancing business we’ve learned that writers or other creatives automatically retain complete ownership of their work, unless it is done as “work for hire.” Freelancers do a lot of work for hire. In our case, because the courts are still figuring out what “work for hire” encompasses, we must take extra care to spell out all of the rights we retain when setting up an agreement (contract) with our clients. Copyright seems to be too broad for Freelance use, doesn’t it?

So, what should freelancers do to ensure that they can reap future financial benefits from their work? There is a new type of copyright that has gained legal standing called the Creative Commons License. It is controversial in some radical “information should be free” circles, but extremely useful in defining ownership by allowing the giving away of rights and the retention of ownership.

Creative Commons, a legal method of opening up copyright so that remixing, additions, sampling, and other sharing and creative borrowing can take place over and above basic copyrights.

Freelancers Should Adopt the Creative Commons License as Their Copyright

Creative Commons, a non-profit organization founded in 2001 by Lawrence Lessig to address the wide divide between Public Domain and strict copyright ideas of ownership, creates a special extension of copyright that has been euphemistically called the “some rights reserved” copyright. The organization has created a fully legal mark and language that stands up in court and provides the ability to share some of the rights of ownership. Such sharing language takes copyright into the computer age, since the Internet and computer networks are basically the “Wild West” when it comes to your ability to protect your work. Creative Commons licenses were created with the help of computer scientists, cyberlaw experts, artists, and entrepreneurs and stands up under not only American jurisprudence, but International copyright courts as well.

The benefit of using the Creative Commons copyright alongside your contract to protect your ownership of your creative work is that it acknowledges that you have provided a client with part of the rights commercially while retaining other rights.

A Creative Commons license lets you stipulate how much ownership you wish to share and to whom through a simple form. The result of completing this online form, is a graphic button and accompanying HTML code that can be embedded on web pages, PDFs, music CDs, video DVDs, and other original media. The actual license is registered and stored on the Creative Commons’ servers.

There are five different clearances you can provide in your license:

Commercial Use: You grant permission for others to copy, distribute, display, and perform the work, including for commercial purposes.
Non-Commercial Use: You grant permission for others to copy, distribute, display, and perform the work only for non-commercial purposes .
Allow Derivative Works: You grant permission for others to copy, distribute, display and perform the work, as well as make derivative works based on it.
No Derivative Works: You grant permission for others to copy, distribute and transmit only unaltered copies of the work — not derivative works based on it.
Share Alike: You grant permission for others to distribute derivative works only under the same copyright permissions that you have granted.

To set up your CC License, go to www.creativecommons.org and click the License block. You’ll be taken to a page with a questionnaire that helps you select the correct ownership retention levels for your project. The form is in two parts. The first part asks you to choose the type of license (you can select more than one sharing option in your license). An explanation of these rights retention and sharing levels are defined in the bullets listed above.

The next set of questions are optional, but I strongly suggest you complete them because they help identify who actually owns the work and how to contact them for clearances (or how to contact you with a request to borrow your creation with proper attribution).

The owner of the material that is to be copyrighted. This is the important attribution clause that sets up the legality of the copyright. If you do not know who originated the work, you will need to do some research to come up with all of the owners of the pieces that make up the piece.
How you wish to share the work. Once you state the owner of the work, you define how you will allow it to be used. There are three types of sharing you can allow either together or individually: full commercial use (this is a good selection for freelancers), permissions for modifications by one person, and/or permissions of modifications if those modified works are also shared.
Who, what, where, and how. Creative Commons collects additional attribution information that identifies the name of the work, it’s author, a website address or email link for the author (if it has been posted on a website), and if the work is sharable, then provide a web address that the user can link to in their attribution. You can also stipulate a web address where you have posted instructions on how to get other clearances not stated in the basic creative commons copyright.

When you have completed the form, the Wizard generates the appropriate HTML code that you can embed into PDFs, websites, videos, music, and text.

If this were a not-for-hire article then its Creative Commons License could be set up as follows (with its options being a) for commercial use, and b) share with attribution but do not change).

Important Note: Always check with your editor about specific contract clauses that they might have with their publishers/distributors before setting up your CC license. For example, Freelance Switch has an exclusivity clause for all work published online, thus you cannot assign a Share Alike option in your copyright. On the other hand, you are permitted to re-sell the same article to a print magazine, meaning you can select the For Commercial Use option. Should you be so fortunate as to find a print outlet for your article, you should again check with this editor about their copyright rules as they might differ.

This work is licensed under the Creative Commons Attribution-Share Alike 3.0 United States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-sa/3.0/us/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA.

To Learn More About Copyrights and Creative Commons

Legal Guide for Bloggers, Electronic Frontier Foundation (http://www.eff.org/issues/bloggers/legal)
Why Should You Care About Copyright – LoveToKnow Freelance Writing (http://freelance-writing.lovetoknow.com/Why_Should_You_Care_About_Copyright)
10 Big Myths about copyright explained (http://www.templetons.com/brad/copymyths.html)
Creative Commons Foundation (http://creativecommons.org)
Justices Consider Status of Digital Copies of Freelance Work - The New York Times (March 29, 2001) http://www.nytimes.com/2001/03/29/technology/29WRIT.html
Court Strengthens Copyright Status Of Freelance Artists on Commission – The New York Times (by Linda Greenhouse, June 6, 1989) http://www.nytimes.com/1989/06/06/us/court-strengthens-copyright-status-of-freelance-artists-on-commission.html
Freelance And Copyright, About.com Desktop Publishing (http://desktoppub.about.com/cs/freelance/a/contracts_4.htm)
Copycense » Your Copyright Responsibility As a Citizen (August 7, 2009) http://www.copycense.com/2009/08/your_copyright_responsibility_as_a_citizen.html
Is Creative Commons Bad For Copyright? | Techdirt (http://www.techdirt.com/articles/20090901/0140596065.shtml)
The Copyright Website (http://www.benedict.com/)
The Copyright Clearance Center (http://www.copyright.com/)
The Digital Millennium Copyright Act of 1989, UCLA Online Institute for Cyberspace Law and Policy (http://www.gseis.ucla.edu/iclp/dmca1.htm)

Rita Lewis |
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Rita Lewis has been a Freelance web designer and content strategist for the past 19 years and specializes in Joomla! content management systems. She has an eclectic background with an MA in cultural anthropology and a love of Arthurian Legends and Farscape. She's a wife and the mother of two teenage girls and two cats.