Hello, all you creative souls out there. Today’s topic is a bit of a soapbox item for me as I care passionately about artists, writers, and creators of original work being credited for their work. You see, there is a commonly held ‘misunderstanding’ that if you have paid for creative services (artistic design, photography, music, writing) – then that means you have paid for, and own, the copyright too. It may surprise you to learn, from a legal standpoint, this is not the case. If you are considering paying a designer or photographer to create artwork for the front cover of your book or need the services of a creative to make your dreams come true, this is for you.
Commissioning a creative for your big project
There are any number of projects you could be considering aside from artwork for your book. You may be dreaming of creating your own set of oracle or tarot cards – or you fancy producing a meditation MP3 with backing music for your clients. Just one snag. You can’t draw and you can’t so much as play a note.
“Hey I’ve got my dreams man …” I hear you cry. If this is the case, then don’t worry, your dreams can still come true if you enlist the help of a willing creative. Before you do though, there are a few legalities around copyright you need to understand before you dive into a working ‘relationship’.
As a professional writer. I must stress right at the outset, this article in no way reflects any experiences on any of the projects I’ve taken on. I always discuss the legalities around the ownership of copyright and Attribution (credit) early on in the ‘Agreement/ Contract’ phase and would only ever proceed when all parties were happy and had signed off on what was ‘mutually’ agreed upon. An ethical and professional ghostwriter will always have copyright terms written into their contract so look out for that as it’s a big red flag if these terms are missing.
With that out of the way, let me explain why you do not automatically own the copyright of any work you have commissioned – even if you’ve paid for the ‘services’ of a ‘creative’.
Put simply the physical ‘creation’ is totally separate from the legal ownership/copyright of that creation.
According to the Law, Copyright is automatic upon creation of the work. The first owner of the copyright is the original author (for literary, musical, dramatic, and artistic works) producer (for sound recordings and films), or broadcaster (for broadcasts).
Copyright is one of the most powerful rights you can own as a creator. It enables you to:
- control where and how your work is used
- earn money for your work for the rest of your life
(and creates provisions in your Estate for 70 years after – though check the law in your country).
Copyright gives you:
- ownership rights relating to your work
- automatic and free legal protection as soon as you create your work
- the support of Australian (British or European) and international laws.
So what does copyright mean?
Copyright means that only you have the right to do certain things with your work. You have the right to:
- reproduce or copy your work
- communicate your work to the public, for example by broadcasting (TV, radio), by email, or on the internet
- publish your work
- perform your work
- adapt your work.
So you can see why a creative would never just ‘give up’ the copyright of their work without an agreement or financial settlement in place. You can also see it is so different from simply paying for the service or the ‘use’ of that work.
When you pay for this work to be done (engaging creative services) – you are paying for the equipment, the time it physically takes the creative, the skills, the education, the talent – the ‘use’ of the image – someone else’s work (possibly indefinitely) but you are not paying for the right to claim that work as your own.
In a corporate environment, things work differently for creative services. Way back when I wrote for these blue chip companies, the copyright of my writing (i.e. the legal ownership) belonged to the company I was working for. This is written in law across the world (with some variations in the US). However, in return for my words, I had a contract and was paid a good salary. Basically, the salary was in exchange for ownership of IP. A salary in exchange for my years of study and expertise. A salary I could live on and provide for my family – because it was a valued skill and was helping sell products or brands. It was a valued skill that helped position the company in a competitive market. I worked with Designers and Photographers and the same terms applied to them. Setting the benchmark look and feel for a company’s brand and communication style is an important role and it’s important for the Company to retain the rights to that look and feel – but they still have to pay.
I own the copyright of my words
As a creative with my own writing business, I own the copyright of my words – (even if I have received payment to write those words). I own the copyright until I ‘legally’ give permission and transfer my copyright to someone else. That ‘transfer’ of ownership would be in return for a significant fee and a legal agreement.
In the case of a book, this ‘fee’ is in part, to cover the loss of earnings from Royalties, Rights and Recognition I could have received for the rest of my life and 70 years thereafter (the duration of copyright in Australia). If you want to be blunt about it, there has to be some recompense for someone publishing a book under their own name, or building a career based on someone else’s expertise right?
If a contract or transfer of copyright ownership did not exist, and let’s say perhaps I hadn’t been paid as agreed for the services I provided, then I, as the creative, could legally claim back my earnings through Royalties (if I were so inclined). This is because the law states ownership of the words belongs to the original creator – and if there is no contract in place to say otherwise – and I can prove I wrote the words through a paper trail – well – you can see how it is.
Now you may think, “but it was my idea – not fair at all” but the reality is, copyright does not cover ‘ideas’. One singular idea can be taken and made completely unique through the lens of each creative out there in the world. So remember until there is something ‘physical’ there is nothing to copyright.
Photographers, Artists, Designers & Musicians
This is the same when you commission a photographer, designer, or musician to come up with a design, image, or music for your project.
When you pay for this work to be done (engaging creative services) – you are paying for the equipment, the resources, the time it physically takes the creative, the skills, the education, the talent – the ‘use’ of the image or music – someone else’s work (possibly indefinitely) – but you are not paying for the right to claim that you created the work and that you own it.
Traditional Publishers want to see the paperwork
If you then go on to work with a traditional publisher (even ‘self’ and ‘assisted’ publishers such as Balboa), their legal team will ask you to provide written consent or approval from the originator of the works (ghostwriter, designer, or photographer) that permission is granted for the ‘commissioner’ to use their works under your name.
So you may have paid a photographer to take the shot that will adorn your book, or you may have paid an artist to design the artwork on your cards, or you may have paid the ghostwriter to write your book – but if the publisher does not see the evidence that those creatives are either being credited via attribution and recognised in their own right – or the publisher does not see the written Agreement that either approves use or transfers ownership – then everything comes to a crashing halt!
Now here is something else you may not be aware of when it comes to Rights. Even if a writer/creator has sold their copyright, they still reserve Moral Rights over their work.
In fact, creators have three moral rights.
they have the right to:
- be attributed (or credited) for their work
- not have their work falsely attributed
- and not have their work treated in a derogatory way.
This is an interesting area because it means you, as the original creator, automatically still have a say as to how the work should not be used. So – for a political campaign or something even more distasteful (just as an example).
It also safeguards, your work from being passed off as something someone else wrote/created (aside from the person you had the contract with).
Quite simply, If someone breaches your moral rights, you can enforce your rights against them and seek a remedy through the courts.
Copyright and Social Media
As outlined above, the owner of copyright belongs to the person who took the photo, or wrote the ‘original’ words they shared on a social media post. To create my ‘brand’ I will often create my own motivational posts comprising a photo I took and words I came up with. I will always protect my copyright by adding my logo, my name, or my business name. If someone shares that motivational photo, I’m happy – so long as they have not chopped off my business name, and so long as they are not claiming they wrote it. If you do not give credit to the original creator, you are essentially taking the credit – so this is where you could run into some issues.
If someone has used your photo without your permission, you should ask them to take it down or report them using the social media platform’s reporting function. If the photo doesn’t get taken down, you can then consider issuing a cease and desist letter.
Copyright issues are likely to arise if your photo/artwork/writing is taken from social media and used externally. In this scenario, you would be in a strong position to enforce your copyright.
It’s worth pointing out, if the social media platform you are using has a share function, it’s terms and conditions will usually allow users to share images without infringing on a copyright.
However, If you are uploading or publishing an image owned by someone else, you will need to obtain their permission and attribute the work to them.
You won’t need the permission of the creator if they have released their image under a Creative Commons Licence (as indicated by the shorthand, CC).
Images under a Creative Commons Licence can be copied without permission if you:
- attribute the creator,
- use the image for a non-commercial purpose
- don’t make derivatives of the work.
Creative Commons (CC)
Creative Commons licenses give everyone from individual creators to large institutions a standardised way to grant the public permission to use their creative work under copyright law.
From the public’s (or the re-user’s) perspective, the presence of a Creative Commons license on a website or copyrighted work will inform them as to what they can do with the work (depending on the ‘level’ of Creative Commons license being enforced.
For instance, one of the levels may state, that it’s totally fine to share the work, as long as you give credit (in a specified format) to the original artist, and as long as the works are not going to be used commercially all is good. So you need to be aware of the terms of the Creative Commons license you are using.
Cards on the table
OK, so if you have read this far (thank you), I will tell you that the reason I felt compelled to write this article was because I was listening to someone the other day on a podcast – someone who considers themselves to be ‘spiritual’. In the interview, they claimed they “owned” the artwork on an Oracle card project – even though they did not draw the images themselves.
Their ‘uninformed’ belief was ‘this was their idea/their dream/their brainchild’ so therefore said individual felt they owned it and therefore they were not going to allow the original artist to use their own work.
Apart from the legalities involved (and the fact that having the ‘idea’ is not something that can be ‘copyrighted’) – I thought it showed a lack of integrity to not want to at least credit the person who had helped them achieve their dream – particularly since the artwork was the inspired and stunning ‘focus’ of the product. To me, it showed a lack of human decency or any moral compass and, in that moment, I knew I would not be buying anything this person was selling.
Unfortunately, the topic of copyright had obviously not been discussed in advance … and the young artist had ‘relinquished’ control over these beautiful works of art without prior discussion and agreement. I know this to be true because the artist (who was justifiably proud of her work) had commented that she would like to use them in something else herself (at which point she was told point blank “no you can’t”). I can feel that sense of injustice rising again as I write this …
The individual I had been listening to did not even credit the talented artist on their card deck – and instead, when you look at the display box for copyright information, they have essentially passed off the work as their own.
I think many recent graduates or creatives are nervous about protecting their copyright because (a) they don’t understand their rights, and therefore could easily be taken advantage of and then potentially lose out on legitimate earnings and credit and (b) because most creatives do what they do for love, and it possibly started as a hobby so they feel uncomfortable talking about money. I should point out that even if ‘creating’ is a hobby – the originator still owns the copyright and should be paid if someone else wishes to use that creation in a commercial sense.
So please, please, please if you are a creative, make sure you understand your rights and make sure you have agreements in writing.
If you are someone who has a dream and you need to collaborate with someone or employ their services to make it happen – do the right thing and either credit them with the work they did, compensate them financially, and fairly for the ‘use’ of their work and make sure you understand you do not ‘own’ the copyright unless it was paid for and it’s in writing. And even then, you still can’t claim you physically created the work nor can you do what you like with it.
If you wish to commission a creative, please remember, your chosen creative is giving you the opportunity to make money and receive credit for something you could not otherwise have done – and chances are when you want to move on to do project number two – perhaps to build upon your career, or grow your business, then said creative is more likely to consider working with you again if you have treated them with ‘professional’ respect and have worked within the law. If you ripped them off – they will remember.
For the most part, Copyright is simply misunderstood (rather than any deliberate intent to claim ownership of works where there is none), so any breaches can usually be cleared up quickly with polite communications.
Before I finish, I would like to credit Lady Freida Harris, the exceptional artist responsible for the artwork on Alisteir Crowley’s Thoth deck, since I have used it as a photo to illustrate ‘justice and the law’ in my article.
Lady Freida Harris died in 1962, so her work remains under Copyright for 70 years after her death – until 2032.
On that note ladies and gentlemen, I will step down from the soapbox. If you would like more information on Copyright, please feel free to reach out to me