Giving credit where credit’s due

Giving credit where credit’s due

There is 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 or 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. An ethical and professional ghostwriter will always have copyright terms written into their contract.

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 to the legal ownership / copyright of that creation.

Copyright Law

According to the Law, Copyright is automatic upon creation of the work. The first owner of copyright is the original author (for literary, musical, dramatic and artistic works) or 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

What does copyright mean?
Copyright means that only you have rights 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’ 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.

Corporate Ownership
In a corporate environment, things work differently for creative services. Way back when I wrote for pharmaceutical, medical, and R&D globals, 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 for these words. A salary 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 product or brand and market the company in such a way, making it competitive in a busy 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.

I own the copyright of my words
Conversely as a creative with my own business writing, I own the copyright of my words – (even if I have received payment to write those words). I own 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 to cover loss of earnings from Royalties, Rights and Recognition for the rest of my life and 70 years thereafter (the duration of copyright in Australia).

If a contract or transfer of copyright ownership did not exist, and 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 and a say in the Rights etc – because the law states ownership of the words belongs to the original creator – and if there is no contract in place to say otherwise ..

Now you may think, “but it was my idea – no fair” 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.

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 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.

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 (ghost writer, 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 ghost writer 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!

If you have read this far, I will tell you that the reason I felt compelled to write this article was because I was listening to someone the other day who claimed that they “owned” the artwork on a project – even though they did not draw the images themselves. The ‘uninformed’ belief was ‘this was their idea/their dream/their brainchild’ so therefore said individual felt they owned it and therefore was not going to allow the original artist to use the work. Apart from the legalities involved (and the fact having the ‘idea’ is not something that be ‘copyrighted’) – I thought it showed a lack of integrity to not want to at least credit the person that had helped them achieve their dream – particularly since the artwork was the inspired and stunning ‘focus’ of the product.

The topic of copyright had not been discussed in advance … and the artist had obviously ‘relinquished’ control over these beautiful works of art without prior discussion and agreement because the artist has commented that she would like to use them in something else herself (at which point she was told “no you can’t”).

The individual I had been listening to did not even credit this artist on their work and instead, when you look at the display box for copyright information, they have essentially passed off the work as their own.

Unfortunately, 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, if you are a creative, make sure you understand your rights before entering into any agreement. 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 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.

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, 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. 

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