Advice - General / Rights and why they are important

As a freelance journalist you own whatever you create, whether you have been commissioned or whether you have sold work "on spec" or from stock. It makes no difference if an editor comes to you with an idea: you own your expression of that idea. As a freelance you have two kinds of rights in yourr work: "economic rights" (often called just "copyright") and moral rights.

Copyright

Under UK law, 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 legal sense includes photographers, cartoonists, illustrators and other creators as well as writers. We mean no offence to image-makers when we include them as "authors". 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.

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 (see below), 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. They also want 100 per cent of the income from fees that libraries and clippings agencies pay for reproducing your published or broadcast work - see "Photocopying etc" below.

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

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.

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.

Photocopying etc

Writers and photographers are entitled to extra money from companies and organisations that make "secondary use" of their work, for example photocopying. 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.

What’s an ‘extended collective licence’ then?

In October 2014 UK law was changed to make provision for "extended collective licensing". These would be like the licences offered to libraries and so on, as described under "Photocopying etc" above - but "extended" so that the collecting society can licence copying of works by people who are not its members. Collecting societies must apply to government for permission to issue such licences, demonstrating that they have consulted with authors and/or performers affected, that they have procedures for tracking us down to pay us money, and so on. No such applications had been lodged by July 2017.

Public Lending Right

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).

Fair dealing

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. See A few things you should know about quoting, linked below, for the main points affecting freelance journalists.

Some changes were made to UK law in October 2014. These included the rather slack concept of permitting "quoting" a photograph. and a provision for "fair dealing" for the purposes of parory. The NUJ campaigned vigorously to oppose sillier proposals. It is not aware of any practical effects of these changes on journalists in the following two years. If you come across one, contact exceptions@londonfreelance.org

Finding out more about copyright

For more information on copyright and how the NUJ has been tackling this thorny problem, see the NUJ publication Copyright for journalists and writers, free to NUJ members from the Freelance Office.

Moral rights

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.

* More...

Responding to rights grabs

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.

* More...

Syndication and spin-off rights

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.

* More...

Shift payments and copyright

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...

* More...
 
More advice and links...
* Show me the money from the Freelance
* Tracking down pirates and getting them to pay
* Copyright etc Act 1988 HTML from legislation.gov.uk
[www.londonfreelance.org]
* Rates for the Job good, bad and ugly
* Join the NUJ to get individual advice & representation

Text © Mike Holderness & previous contributors; Moral rights asserted. Comments to ffg@londonfreelance.org please. You may find the glossary helpful.

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.