The Right(s) Stuff: Working with Freelancers/Independent Contractors

Almost all publishing organizations work with outside contributors to produce content. Freelance writers, photographers and others comprise an important part of the publishing ecosystem, especially as some organizations retain fewer employees. Working with independent contractors can add a variety of material and perspective to publications but it also raises a number of rights issues. As we discussed during our presentation at this year’s EPA convention, having clear and concise contracts in place with your freelance contributors will aid all parties in understanding their obligations and expectations.

Why do we need a written contract with our freelance contributors?

First, copyright protection occurs automatically; at the time freelancers create a work, they own the copyright to that work. There is an exception, however: if the freelancer entered into a work-for-hire agreement before performing the work, the hiring organization owns copyright. Alternatively, if the work is already in process or completed, the freelancer can assign their copyright. Copyright law provides that any work-for-hire or assignment of copyright must be in writing. If there is no written agreement in place, at best a publishing organization has an implied license to use a freelancer’s work. Freelancers may object when you try to use their work for a purpose beyond what they believe to be the scope of the license. Or worse, they may claim your organization infringed their copyright, potentially entitling them to an injunction against you publishing their work and monetary damages.

Second, as journalism and publishing continue their evolution in a multimedia world, owning copyright is much more advantageous than obtaining an implied license. Perhaps your publication would like to combine multiple stories from print issues into an online series or use images from previous issues in a photo essay. Do you have the rights to use your freelancer’s work for these purposes? Without a written contract in place, maybe, maybe not. But if a freelancer has signed a work-for-hire agreement or assigns their copyright in writing, your organization may use the work for any purpose, in any format, anywhere in the world.

Third, relationships are better when the parties involved communicate effectively. A good contract informs freelancers up front as to the ownership status and uses of their work. Will it be published in the print issue of a magazine? Included in an online compilation of essays or photos? The restrictions in an implied license can be ambiguous depending upon the circumstances and communications of the parties. Important license terms may be omitted. A written work-for-hire or copyright assignment makes issues like ownership and use clear to everyone.

What should our contract with freelance contributors look like?

Agreements with freelancers do not need to be long, intimidating documents. Most of the important provisions can be covered in a couple pages. A publishing organization should use a template that contains standard language about rights being assigned and blanks to fill in for the length of the work, the amount to be paid, if any, etc. Other items to consider include whether the freelancer may publish the work on their personal website, if the terms are confidential (e.g. amount of payment), and importantly, that the freelancer warrants their work. Only a handful of large organizations have the resources to thoroughly fact-check each detail published. Your freelancers should warrant that their work is original (i.e., does not violate someone else’s copyright) and that the facts presented are accurate.

A simple one- or two-page agreement can save your organization from unnecessary legal headaches in the future. Acquiring the proper rights provides flexibility and security in publishing content and maintains working relationships with trusted contributors.

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Websites such as LegalZoom or RocketLawyer allow users to access template contracts. These forms are not tailored to publishing matters, however, so it is worth reviewing the language before having a freelancer sign one for a project. Flagler Law Group LLC has template work-for-hire agreements which provide a manner to address the kinds of intellectual property concerns raised in the article.

— by Brian Flagler and Craig Gipson

Flagler and Gipson are with Flagler Law Group LLC. With more than 30 combined years of experience in the publishing industry, Flagler Law Group LLC represents Christian media organizations in maneuvering through intellectual property and other legal matters.

Flagler Law Group is a ministry partner with EPA and offers a legal hotline for EPA members.