Copyright for copywriters

Clients sometimes ask me to clarify the copyright position with text I write for them. (I also receive the occasional enquiry about ‘copyrighting’ someone’s intellectual property.) Since I’ve had to research copyright for myself, I thought it might be helpful to share my knowledge in a post.

Please note that this post refers only to UK law on copyright.

Who owns copyright in text?

In simple terms, if you write something, you own the copyright in it. No-one else can copy, distribute, publish or adapt it without your permission.

Written materials – or ‘literary, dramatic and musical works’ – are protected by law under the Copyright, Designs and Patents Act 1988 (CDPA). They must be recorded in writing or otherwise to be granted copyright, and copyright subsists from the date at which recording takes place.

The fact that a third party is a subject of the work makes no difference. For example, if I take a photo of you, I hold the copyright in the photo, even though it contains your likeness. If I interview you and write it up into an article, I hold copyright in the article, even though it contains words that you spoke.

Only content can be copyrighted, not ideas. If you’ve written a book and I write a summary of the ideas in it, copyright in that summary belongs to me – regardless of how unique or new your ideas are. However, I can’t quote your text word for word, only quote short passages to review or refer to your work.

How do I acquire copyright?

You don’t have to do anything to get your writing ‘copyrighted’. You automatically have copyright in anything you write. You can assert this with a statement somewhere in the work (such as ‘© 2010 ABC Copywriting’) but this is purely for information – you hold copyright whether you say so or not.

How long does copyright last?

Under the CDPA, copyright in written works lapses 70 years after the death of the author. Given the likely lifespan of most written marketing material, that effectively means that copywriters hold copyright in their work forever.

Assigning copyright to copywriting clients

Even though a client might pay you to create some text for them, you still hold the copyright in that text unless you assign it to them. They have paid you to do some work, not for the right to exploit the product of your labour.

(Note that this only applies to freelance writers. If you are employed and you write something as part of your work, your employer holds the copyright in it.)

In practice, most writers and their clients act as though copyright passes to the client when the invoice is paid. But legally, that’s not the case. To make it so, you need to include a clause somewhere that explicitly states how and when copyright in text you write will pass to the client. You could put it in your terms and conditions, on your invoice or even ask a lawyer to draw up a contract (something you might consider for longer works, such as books).

Wherever your clause appears, you need to make sure the client actually agrees to it in writing – by confirming their acceptance of your terms in an email, for example. This is the method I use. My own terms and conditions include the following clause:

Copyright in all published content (such as text and designs produced on your behalf) will pass to you on payment of your invoice.

Before I start a job, I make sure the client confirms their order in an email, along with their acceptance of my price and my terms and conditions. Then, if there’s any query later on, I can state with confidence that they have copyright once they’ve paid.

In some cases, you might want to retain copyright in your work – for example, if you write an article for publication in a magazine and you want to retain the right to publish it elsewhere as well. In this kind of situation, it’s probably worth having some sort of letter of agreement that clarifies exactly what rights you’re granting to your client in return for the fee, just to avoid any doubt or confusion.

Protecting against copyright infringement

One interesting question is whether you could have recourse to legal action if a client uses your text without paying. For example, if they published your text on a website without settling your invoice, they would technically be infringing your copyright, and you could take (or threaten) legal action. However, I’ve never tested this in practice or received legal advice about it – so consult a solicitor before you consider it.

Another possible scenario is writing material as a sample of your work, or as part of a proposal. If you don’t know the client well, you might feel there’s a risk of the content being used without permission or payment. To give yourself ammunition for a dispute, you can send your content to a trusted third party (I use my accountant) and simply ask them to retain it. You need to use a despatch method that incorporates the date, such as email or post. This allows you to establish later on, perhaps during a dispute, that you had created the content at a particular time.

To make it clear that any copyright infringement will be challenged, you can include a warning somewhere in your proposal, alongside an explicit claim to copyright. I use a form of words along these lines:

The content of this proposal is © 2010 ABC Copywriting and is not to be used without permission. ABC takes active steps to protect its intellectual property.

Finally, just in case you were wondering – the keystroke for the © symbol is alt-G on Macs, and Ctril-Alt-C on PCs (in Microsoft Office). In Microsoft Word, you can simply type (c) and it will be corrected to © if you have AutoCorrect activated.

This post is listed at W3C Software Directory.