Advice - General / Rights and why they are important
Freelance journalists own whatever they create, whether they have been commissioned or whether they have offered work "on spec" or from stock. Freelances have two kinds of rights in their work: copyright and moral rights.
Under UK law, and specifically the Copyright, Designs and Patents Act 1988 (see the link below), copyright is the intellectual property right that authors have in the work they have created. "Authors" in this case includes photographers, cartoonists, illustrators and other creators as well as writers. Copyright protects against the use of the work without the author's permission and entitles the author to benefit from that work.
Under UK law employees do not own copyright (see also shift payments and copyright).
Copyright applies just as much to the internet as anywhere else.
Freelances - hold on to your rights
Copyright is a valuable asset. If you own the rights in your work you are in a position to make money from it through, for example, syndication - for the rest of your life (and your heirs can benefit from it for a further 70 years).
In general it is a good idea to have a discussion of what rights you will licence when you are commissioned, as part of your negotiation over fees: see "Negotiating fees" (linked below).
The Creators' Copyright Coalition Commission/Confirmation of Sale form (available from the Freelance Office and www.londonfreelance.org/forms) lists a range of rights you might license to a client. Ticking the appropriate boxes on the form will make it clear to you and your client just what you have agreed.
If you actually agree to assign all rights, the price should be high - more than four times the fee for a normal licence, and much more if you already have reason to suspect your work will be sold on. The man (not a journalist) who sold video of suspected bombers being arrested in London in July 2005 to ITN and the Daily Mail for £60,000 thought it was a good price - until he realised how much they had made from syndicating it. He is now a convert to retaining rights.
Instead of assigning rights, a freelance is generally recommended to accept a basic fee for the first use (for example in a magazine or newspaper) and sell the publisher additional licences for other specific uses for agreed fees or percentages for each medium. Each constitutes a separate usage of the work.
Resisting rights grabs
Media companies often ask freelances to "assign" (hand over) all their rights, usually citing as a reason the advent of electronic media. Their aim is to acquire 100 per cent of any on-sales, in traditional media as well as electronic, so your work can be sold to other publications without any reference (or payment) to you.
Some publishers issue "weasel" contracts that acknowledge you own your copyright, but go on to demand an all-encompassing range of licensed rights, for little or no extra payment. This is like them saying "We were asking for the freehold to your house for the price of a month's rent, but now we just want a 999-year lease - for the price of a month's rent."
Try to resist either of these types of grab. Many freelances, individually or in groups, have successfully done so. Retaining copyright is more than just a principle - material may be sold on to other publications or electronic media, sometimes for fees that are far greater than the original commission. See "Show me the money" (linked below).
Retaining rights can also be important to a freelance in maintaining their reputation - and without a reputation a freelance has no work and no sources. Anyone who has assigned all rights in their work may find it showing up in places that harm their reputation. A freelance may have promised a band that their interview will not appear in a particular tabloid. They may want to maintain a reputation for independence by stopping their work appearing in PR material. All will want to respect the NUJ Code of Conduct, which commits members not to allow work to be used in advertising: specifically not to
...by way of statement, voice or appearance endorse by advertisement any commercial product or service save for the promotion of her/his own work or of the medium by which she/he is employed
Respect must be mutual
Freelances, like staff, should ensure that they do not breach the rights of other authors (including illustrators and cartoonists and photographers). Remember too that software, including fonts, is subject to copyright. Even free software is issued under a copyright licence which specifies how you may copy it. Politely resist any suggestion from commissioners (who may know no better) that you breach these conditions.
Writers and photographers are entitled to extra money from companies and organisations that photocopy the work. To be sure of receiving this, and other payments for such "secondary uses" UK freelances need to register with ALCS (for book and magazine writers) and/or DACS (for photographers, illustrators, etc). See the links below. How these payments generally work is that libraries, press offices and others who do bulk copying pay a licence fee to the collecting society. This arranges a survey of a sample of licensees, to work out statistically how to distribute it. Efforts continue to deliver the share of this money due to newspapers' contributors.
These "collecting societies" also distribute money collected for secondary uses in other countries - including, for example, Public Lending Right (see below) from Germany and the Netherlands.
DACS assumes a licence to collect and distributes certain payments to photographers, illustrators and cartoonists who are NUJ members, unless they opt out. Any who want to do so should contact the Freelance Office.
Book authors, illustrators and translators are also entitled to payments for lending of their work by libraries. UK law says you are entitled to Public Lending Right payments because you are the author. PLR is quite separate from copyright. The payments are calculated from a survey of selected libraries, extrapolated statistically. To be sure of receiving this money, authors should register with Public Lending Right UK (see the link below).
UK law defines a strictly limited number of ways that works can be used without the author's permission or payment to them, such as including them in exam questions. These uses are called "fair dealing" - the equivalent exceptions in US law are called "fair use". See the consolidated version of the Act (linked below) for details.
Finding out more about copyright
For more information on copyright and how the NUJ has been tackling this thorny problem, see the NUJ publication Battling for Copyright, free to NUJ members from the Freelance Office. Training on copyright is now available from the NUJ Training Department, with input from Thompsons' copyright lawyer and examination of several interesting case studies.
The important moral rights are the right to object if your work is distorted, and the right to an accurate credit. These are obviously important to protecting and to spreading your reputation - and without your reputation you have no work.
Any pressure to "waive" these rights needs to be resisted. These rights are particularly important in the age of digital publishing, which makes misattribution and distortion of work much easier than they were on paper.
As long as you have signed nothing, you retain copyright in your material. If, however, you receive a communication from a publisher requiring all rights, and you want to retain them, you must write back and refuse. Silence may legally be regarded as agreement.
Where freelances agree to license the original publisher to conduct on-sales of their material to other print publications (traditional syndication), the industry's custom and practice has been to split the gross revenue 50-50 between the writer and the publisher. Freelances handling their own re-sales collect all the syndication proceeds.
Who owns the work of someone paid by the day? The Copyright Act is clear that the exclusion of employees from copyright applies to "work done in the course of their employment" - which would seem to mean an actual job...
The National Union of Journalists must not, can not and would not wish to dictate rates or terms of engagement to members or to editors. The information presented here is for guidance and as an aid to equitable negotiation only.
Suggestions apply to contracts governed by UK law only. In any event, nothing here should be construed as legal advice.