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.

‘Pride only hurts. It never helps.’
Marsellus Wallace in Pulp Fiction

A while ago, a long-standing and highly valued client asked me to write a web page for her. As usual, we spoke at some length about the audience, the messages and the tone. I went away, produced a draft and submitted it.

In response, my client produced an entirely new draft and sent it over. ‘What do you think?’ she asked.

Marsellus (Ving Rhames) invites Butch Coolidge (Bruce Willis) to take a dive

The instant I read her version, I knew it was better. She’d got the right tone, the right choice of words, the right structure. Apart from a couple of minor grammar tweaks, it was good to go. And that left me with two options:

• Option 1 was to climb back on top of the situation by combing through her text, finding everything that could possibly be changed and mounting a persuasive case for a new version with my fingerprints on it.
• Option 2 was to step back, accept that I’d missed the target and simply endorse my client’s version.

I went for option 2.

It was less work. It didn’t put me at odds with the client. And, most importantly, it was the right course of action.

Was it humiliating? Maybe a little. But I reminded myself that…

• I’d done the spadework. On the face of it, it might seem that my client could have just written her version alone, without any input from me. But her version, though very different from mine, still came after it. I’d conducted the initial discussion and drawn out a brief from it. I’d conquered the blank page, allowing her to learn from my mistakes. And, before I even sent my draft, I’d already rejected a number of non-starter approaches.
• I was still involved. Again, on the face of it, my client could have proceeded to publish the content without me. But she didn’t. She still wanted me to be involved in the process, however tangentially.
• Approval adds value. A lawyer might read through a contract, confirm that it’s OK as it stands and charge you £1000. They might not have ‘done’ anything tangible, but they’ve still helped you. Without their input, you’d feel much less confident about going ahead. By confirming that my client’s version was OK, I was still adding value to the project.
• Only results matter. Often, the path to the goal is more circuitous and time-consuming than we would have hoped. Or perhaps it doesn’t allow us to shine as we might like. But the point is that we get there. Better to get something that works for the client – by whatever method – than something that just makes you look good.

It all comes down to a focus on adding value, rather than feeling valued. Ultimately, clients remember outcomes rather than processes. (They’ll only remember processes if you make them more complicated than they need to be.) It’s not all about you.

As you can see, I’ve got a ‘follow me’ button in my navigation, so Twitter is one click away from every page on this site. And that means that visitors’ experience of my online presence might include a sharp variation in tone. Depending on my mood and willingness to Tweet at any particular point in time, a potential client might step from my carefully crafted corporate content to a confession of Cheddars addiction, a sarky comment on last night’s TV or (if they’re lucky) a throwaway observation about search marketing or online copywriting.

When I’m comparing my unique visitor stats to the number of leads I get through the site, this thought gives me pause. Are visitors put off by my Twitter content, or perhaps even this blog? And more broadly, does social media – even when done exactly as the gurus suggest – invariably enhance reputation?

Talking to strangers

Everyone understands that different online media require different tones (I’ve covered it in this post). For most businesses, Tweeting in the same voice as you use on your corporate site would be absolutely deadly, resulting in a desperately dry, po-faced and self-centred feed. While competitors were asking their customers what they did on Friday night, you’d be Tweeting about your dull-as-ditchwater product launch. You’d have no followers, no profile and no ROI.

Does careless talk cost reputation?

However, what works for friends and followers might look strange to newcomers. A prospect clicking through to my Twitter profile will see my last Tweet prominently displayed in 28pt type. If that Tweet is frivolous, or even offensive (a subjective judgement, after all), it surely won’t make a good impression. At the very least, the positive ‘he has a personality’ points could easily be offset by a ‘not very professional’ penalty.

I serve clients from all over the world. What would a visitor from Russia or El Salvador make of a conversation about liking cheesy biscuits, on Monday morning, from someone who presents themselves as a professional? In fact, what would a UK visitor who just didn’t know much about Twitter think of it?

For me, casual Tweets are the online equivalent of having the radio on in the background when you answer the phone. Some people just aren’t going to like it. That’s why, when I remember, I’ll try and make sure that I leave the feed with something relatively sensible or useful at the top, like a retweet from @econsultancy. Sure, it’s inauthentic, but it feels safer.

Unseen damage

I often point out to clients that a poor website can do serious harm to their reputation without them necessarily being aware of it. A site riddled with ancient content, inconsistent formatting and spelling errors won’t have the phone ringing off the hook with complaints. Instead, visitors will come, form a negative impression and leave – almost certainly without comment. If they judge by appearances – and why shouldn’t they? – you’ll simply never hear from them.

When I view some firms’ websites, I’m astonished at the substandard content they leave online for years on end, apparently oblivious to the impression it’s giving. If I work with such firms, it often transpires that they are aware of the problem, and plan to sort it out. But with no negative feedback from the prospects that got away, there’s no sense of a ‘burning platform’ to force them to act.

Reputation bomb

With that in mind, consider a Twitter feed that’s easily accessible from the home page, or actually visible on it (as it should be, according to the received wisdom). It could easily be a reputation bomb primed to explode.

If you’re an active Tweeter who combines business and pleasure in one account (as most sole traders and SMEs do), you’re Tweeting stuff you’d never dream of publishing at your main site (humour, politics, personal life etc) on an hourly basis. And if you don’t mix in some personal stuff, your feed will be too dry. Who’s to say a fantastic prospect might not click into your feed at a time when it shows something catastrophically trivial?

I’m relatively paranoid about Twitter. I aim for friendliness, humour and relevancy and set myself strict rules: no politics, no swearing, no arguing, no boasting about work, no chat about clients. (The one evening I did Tweet about politics, I lost a follower for every Tweet I posted.) But many Tweeters don’t police themselves in this way, giving their language, feelings and reactions free rein. I respect that – after all, I’ve argued before that we should market honestly and be ourselves in social media. But some Tweets are so pointed that they elicit a sharp intake of breath as you read them. Does the author really want those words online?

Broadcasting trivia

We’ve all seen the alarmist, ill-informed articles in mainstream media about the perils of Facebook, when in fact it’s easy enough to restrict access to your page (or at least it was, until the privacy options started to look like this). Twitter, as most people choose to use it, exposes your posted content far more widely.

Each Tweet lives forever at its own URL, and Google now searches Twitter in real time, more efficiently than ever before. And it might not index the Tweets you want it to. For example, my highest-ranking Tweet on a search for my name (mercifully on page 2) is this effort (presumably because of its keyword density for ‘Tom’):

Not offensive, but hardly inspiring, and undeniably trivial. On balance, probably not a URL I’d want a prospective client to see. And it could have been worse.

But it doesn’t end there. You can opt to have your Tweets syndicated to third-party sites. One such is LinkedIn, surely the most pin-striped and buttoned-down of all the networking sites. It’s a place where serious job-hunting and reputation-building is the order of the day (along, it seems, with an ever-increasing volume of discussion spam). But depending on when a potential client or employer visits, your carefully edited CV could be gatecrashed by the most hasty, drunken, offensive Tweet you’ve ever Tweeted. That’s why I haven’t, er, linked in my Twitter profile to the site.

Imaginary walls

In my experience, although most people’s Twitter accounts are unprotected, in practice they still Tweet as if their accounts were somehow private – everything is ‘between friends’ in terms of both content and tone. Others go further, treating Twitter like a confessional, or even a diary – despite having thousands of followers. Certainly, many Tweets clearly originate with the urge to unburden rather than the need to communicate.

You might regard your Twitter account as more ‘personal’ than your business content, with a clear division between the corporate and social worlds, but in reality the distinction may be largely in your head (and not in your client’s).

This can apply to other types of social-media content as well. Many of my blog posts, for example, are primarily of interest to other copywriters, marketers or media professionals, and not really aimed at general business readers (i.e. my potential customers). Sometimes, the resulting comment discussion will stray into areas, such as pricing, where an honest response isn’t something I’d really want my clients to read. So, as with Twitter, I have to think carefully about everyone who might be reading, rather than imagining there’s some kind of invisible wall between my main site and the blog. It’s important to remember that anyone could be reading anything, at any time.

What do you think? Should we worry about the reputational risk of social media, or have we entered a new, more relaxed age where saying something online is no different from saying it in the pub?

• Thanks to Sarah Turner of Turner Ink for the conversation that inspired this post.

If you sell services, whether as a freelance or an employee, you know the scenario all too well. One day you and your client are getting on like a house on fire. The next, the phone stops ringing. What happened? Here’s a few clues:

• They’re broke. These days, many firms are tight for cash, or choosing to safeguard their reserves. Don’t take it personally. If you got paid, count yourself lucky that you got the heads-up in time.
• They got bored. B2B relationships are like marriages. First comes the thrill of getting it together. Then the satisfaction of developing deeper understanding. Before you know it, the spark is gone. The flip side of reliability is predictability, and sometimes people just want a change.
• They moved on. Businesses change. Their strategies, priorities and cultures develop. Perhaps your client, once a perfect fit for your services, is a different company these days.
• Your service wasn’t sexy enough. People like to feel cutting-edge. They don’t want to miss out on trends. Shallow, but understandable. If you’re an established player using proven methods, however effective, a new kid on the block can make you look staid and uninspiring. It may not be fair, but it could get them a foot in the door.
• You weren’t sexy enough. Buyers are people. All else being equal, they’ll go with the provider who gives them an emotional thrill as well as a tick in a box. What’s more, they’ll bend the rules for someone they like. Being fit for purpose might not be enough.

Now, here’s why all that doesn’t matter:

• Plenty more fish. There are always more clients out there. Look at your remaining clients, identify the common thread and profile your ideal customer. Now go and find more clients like that. Your existing clients might be able to introduce you.
• Everything flows. Companies are formed, go bust, merge, split, buy each other. People move on, change role, get fired, start companies. Change throws up opportunities every day. Remember: ‘every exit is an entrance somewhere else’.
• Go where you give value. If your client moved on, it could mean you can’t meet all their needs. But that’s a reflection on them, not on you. Now you need to find new clients for whom you can add major value. There’s no point chasing a gig that’s not right for both parties.
• You are still you. You’ve lost a client. You have not lost your ability to gain clients, or to add value. Your offer is still just as strong as it was yesterday.

The psychological theme here is attribution: the way we think about the causes of events. Natural optimists attribute negative outcomes to others, while taking credit for success. Pessimists do the opposite, blaming themselves for setbacks while putting success down to fluke, circumstance or the actions of others.

If you want to move on from losing a client, cultivate optimistic mental habits. The client has moved on for reasons of their own, not because you fell short. And you already have all the resources you need to find a replacement.

From the outside, freelancing must look pretty romantic – lie in bed until 11, work in your underpants and shave once a week. And, most of the time, it is exactly like that. But there are times that rip the ‘free’ right out of ‘freelancer’, leaving you with nothing more than a lancer – which, as we all know, is a type of cavalryman who fought with a lance. 

Lucky old Janus could admire the key to the new year and watch the darts at the same time

No, scratch that. What I really meant is that there are times when the good things and the bad things about freelancing end up balancing each other out in an intriguingly complicated way. So here are a few observations on the Janus-like, pushmi-pullyu world of the freelancer – so much more conflicted than you thought…

• Insecure yet secure. As a freelance, you never know where the next job is coming from, making your income profoundly unreliable – on the face of it. But, once established, you can build up a client base that is varied in terms of sector, geography and organisation type, and that diversity constitutes a kind of security. The employee, by contrast, is a hostage to fortune, dependent on one company’s success.
• Senior yet junior. If you’re a freelancer with a few years on the clock, you can often find yourself being briefed and managed by those with far less experience. But your role is always to take direction, never to give it. You may have to bite your tongue when asked to work with approaches or timescales that you know from long, hard experience simply won’t work.
• In control, yet constrained. The appeal of the oft-discussed ‘freedom to control your workload’ soon fades when you realise that controlling your workload means declining work. So who are you going to turn down? Will you risk alienating a longstanding client, or nipping that potentially fruitful new relationship in the bud? If anyone (including you) depends on your freelance income, saying ‘no’, in practice, takes some nerve.
• Sincere yet manipulative. As a freelance, you often find that work contacts, and even competitors, become friends. Many clients jump at the chance to confide in a knowledgeable outsider with no political axe to grind. But when friendship and work overlap, it’s hard to be sure of your own motives. Are you paying that compliment from the heart, or because the recipient could hook you up with some work?
• Rich yet poor. Unlike most professional employees, the freelancer can ‘turn up the machine’ by adding extra hours into the day that are actually rewarded with cash money. As a result, it’s possible to boost your income quite significantly. But because your future income is always in doubt, it can be difficult to pluck up the courage to spend the spoils. 
• Unfettered yet beholden. One of the best things about freelancing is being free of the tie to one company, or the obligation to work with one boss. But freelancing isn’t retirement. Instead of being under one big thumb, you’re under lots of little ones – dancing to the tune of all your clients at the same time. And it doesn’t always feel that much like freedom.
• Lonely yet connected. You’ll probably spend a lot of time alone as a freelancer. Depending on your character, that might be a plus. However, in my experience it’s particularly tough to take setbacks such as high-quality proposals that are ignored, highly regarded clients who defect and high-value invoices that are unpaid – all on your own. On the other hand, social media lets you build up an extensive network of people in just the same boat.

Is it all worth it? Well, it’s not for everyone. But if you can handle an unstructured day, motivate yourself and do without the lure of ‘career prospects’, I think the pluses outweigh the minuses. Now, I wonder if I should get out of bed?

This is the first of two linked posts on negotiation for freelances. The second part can be seen here.

Negotiating the terms of a project can be one of the most difficult things for freelances to manage, after generating new business. For those without a commercial background, such as copywriters or graphic designers, hammering out a deal can feel a very long way from the comfort zone. It may become a source of real anxiety that taints the enjoyment of the ‘real’ work to be done.

That’s a shame, because negotiation is a skill that can be acquired by anyone. While some people have a natural flair for negotiation, the rest of us can still learn how to apply the basic principles, achieving a huge step forward from ad hoc, reactive or emotional approaches that deliver mixed results at best, frustration at worst.

Preparing to negotiate

The key to successful negotiation is preparation. Thinking through what you will and won’t accept, and your alternatives, puts you in a position of power right from the start. Without preparation, you’re entering a competition without really knowing the rules – so don’t be surprised if you don’t come out on top.

Your top line

Your top line is the best deal you could hope for in the circumstances. In an ideal world, what would you like to agree in terms of price, timescale, working method and other factors? Know this in your mind, or ideally write it down, before negotiation begins.

This might seem pointless – surely we all just want as much cash and time as possible? That’s true in a sense, but of course there are limits to both. Realistically, rates are dictated by your experience, the market and the economy, while timescales can never be completely open-ended. Psychologically, it’s much easier to aim for an absolute goal (“£x per day”) rather than a relative one (“more money”). After all, another £5 a day would be “more money”. Would that satisfy you?

Your bottom line

The converse of the top line is your bottom line: the worst deal you would accept. As with the top line, consider the minimum rate, shortest timescale and least convenient terms that you could live with. If the terms are worse than this – in any one aspect, or more – you’ll decline the project.

Take everything into account: the need to make a profit, opportunity cost (if you do this, you can’t work on something else) and emotional impact. Financially, it’s probably better to be busy than idle, but if the terms of the job make you feel miserable and used, the knock-on effects on your motivation just aren’t worth it.

The bottom line is an important safeguard against accepting the wrong terms in the heat of the moment. Like an automated ‘stop loss’ in investing, it protects you against your own fear and greed, setting a rational limit on what you’ll accept before you walk away. Crucially, you do this before you negotiate, rather than bumping up against it during the negotiation or (worse) realising that you’ve gone beyond it when it’s too late.

Your BATNA

‘BATNA’ stands for Best Alternative to a Negotiated Agreement. Your BATNA is whatever you will do if an agreement cannot be reached with your client.

Getting a concrete sense of your BATNA gives you a sense of perspective about the consequences of not getting the project. Instead of entertaining apocalyptic imaginings of going bust, losing your house and becoming a vagrant, you create a realistic picture of the outcomes that will result – and the actions you’ll take – if no agreement is reached. For example:

If I don’t get this work, I’ll…

• …work on my other projects, but in a more leisurely and enjoyable way
• …spend some time networking or marketing myself
• …acquire a new skill
• …do something outside work I really enjoy, and return to work refreshed

The point here is to focus on what will be gained if this opportunity does not proceed, not just what will be ‘lost’. As the Zen saying goes, ‘every exit is an entry somewhere else’. (And you can’t really lose what you never had.)

Working up your BATNA takes the sting out of your fear of loss, so you understand that missing out on this deal or project isn’t the end of the world – just another turn in the path.

You are now armed with the three key parameters of a negotiating position: your top line, your bottom line and your BATNA. Let the games begin!

• Now read Part 2 of 2: The Negotiation

Once, I commissioned freelances. Then, in a Sméagol-to-Gollum style transformation, I got made redundant and had to scrape together a living in the hand-to-mouth, twilight scavenger world of the freelance copywriter. I could have been a contender. But more to the point, here are the top ten things I’ve learned in five years as a wandering content-ronin.

1.    Believe in abundance. If you’re short of work, it’s easy to fall into anxiety. Instead of focusing on scarcity, switch your attention to the many opportunities around – online, in your local area, around the world. If local competitors spring up, that’s great – it means there’s work around! We get what we expect in life, so start expecting that opportunities – and cash money – will be coming your way.

2.    Hold on tightly, let go lightly. In other words, focus on the copywriting jobs you get, not the ones you don’t. It doesn’t matter why your quote wasn’t chosen, or why that client stopped using you. What matters is serving the clients you have today.

3.    Accept blame. In fact, actively seek out blame. If things go wrong, claim responsibility, even if it’s not your mistake. Failures of communication, missed deadlines – whatever. Blame rarely sticks to those outside an organisation, but your contact or client will be flattered at the implication that they’ve done nothing wrong.

If some copywriting work didn't come in soon, he might have to consider becoming a social-media guru

4.    Pricing is a game without rules. I don’t mean ‘rip off your clients’. I mean that people’s expectations on price vary so wildly that it’s almost impossible to find a consistent approach. Get used to pricing job by job. If the client proposes a price, be thankful you don’t have to. Love clients who will negotiate instead of never contacting you again if your price doesn’t stack up.

5.    Networking takes time. With social media, anyone can rustle up a big network in weeks. Unfortunately, its power to deliver freelance copywriting work will be limited. What actually works is referrals from friend to friend, and they happen when your contacts’ contacts realise they need a copywriter – which can take years. But as long as you keep meeting expectations, referrals will come. 

6.    Learn to listen. Forget impressing the client. Learn to listen, not speak. First and foremost, you’ll do better work because you’ll learn more. On a human level, people love the chance to chat with an impartial outsider – so give them it. It’s a big part of the value you offer.

7.    Cultivate detachment. I’ve found I can handle freelance copywriting much better if I’m not emotionally involved. I try not to get excited about new opportunities so I’m not disappointed when they don’t pan out. I don’t pat myself on the back for a good month, in case the next one is awful. Becoming a company is a good way to create distance between you and your work, and worthwhile for this reason alone.

8.    Don’t flatter yourself. Clients do not spend that much time thinking about you and your copywriting, so don’t waste time and effort over-thinking about what they might want, or what a particular reaction (or lack of reaction) might mean. They have a job that needs doing, and you’re a tool to get it done – end of story.

9.    Under-promise and over-deliver. Tell the client the worst-case timescale, then beat it by four or five days. Maybe even reduce your price because you did the work quickly. Sounds like a cheap trick? Believe me, your customers will have dealt with too many flaky suppliers to feel that way. They will absolutely love it.

10. Be in the moment. Because the future is always uncertain for freelance copywriters, some worry is always present. Try to let go of it and enjoy the work you’ve got today. Remember, no-one really has any security in today’s working world, so let tomorrow take care of itself.