Copyright For Creatives: A Guide To Intellectual Property For Artists, Photographers and Content Creators

Copyright is important for all sorts of businesses, but it’s essential protection for artists, photographers, illustrators and anyone producing content for clients. As creatives, the assets you create have value, and so, although you’re providing a service, you’re also producing a product - one that may easily be copied, used and reproduced without your permission, which is why copyright exists.

Although used for all sorts of businesses, copyright for creatives is especially important because, as a creative, your currency is originality, so having someone strip you of this can be highly detrimental.

Technically, any work covered by copyright would be creative, but in this article, we’ll focus on how intellectual property and copyright works for photographers, designers, computer software designers/developers, artists, musicians, writers and those working in the arts, and specifically those who are self-employed, freelance or running creative agencies.

In this article, we’ll explain what intellectual property is, how it works, what you can copyright, how your intellectual property can be protected, and whether copyright covers AI-assisted works.

What is Intellectual Property (IP)?

Intellectual property is an umbrella term for the laws protecting original ideas and work. Patents, trade marks, design rights and copyright are all types of intellectual property.

Patents are ideal for entrepreneurs who’ve invented something novel and that involves an ‘inventive step’. Often, the patent does not apply to an entire product but a particular component or mechanism that separates it from other available products in the marketplace. The application process for patents can be lengthy, often requires legal expertise and must be granted to be enforced. They can also be expensive. However, holding a patent means competitors cannot copy your invention and so the time and cost involved is usually worthwhile to ensure the long-term value of an intervention.

For creative works, patents are hard to obtain as that ‘inventive step’ requirement is a tricky criteria to meet.  Therefore, artists, photographers and content creators usually rely on copyright.

In the UK, copyright is automatically given to the creator/author of the work and involves no contract, legal process or even registration. Although many use the © symbol on their work, this is applied only as a deterrent and is not legally necessary, since the copyright exists as soon as the work is created.

Copyright for creatives might include materials such as:

• Artwork and illustrations

• Photographs

• Articles, blogs, books, scripts and other written content

• Websites, graphic designs, logos, technical drawings, etc

• Media created, including music, video, audio and even social media content

• Computer software, including the code

Copyright is automatically granted to the author of any work deemed ‘original’. This does not mean the work must be unique, however, creative decisions must have been made by the author in the process, which makes the work uniquely ‘theirs’.

Who Owns The Copyright On Creative Work?

If you're employed by an organisation to create works on their behalf, then your work will usually belong to the company, as per the terms of your employment. However, if you're self-employed, this will be dependent on your service agreement or terms and conditions. For example, if a company outsources the creation of an App to an App Developer, then they should establish who the code belongs to. This would usually be done within a contract - either a specific IP Assignment or within the freelancer's or company's Terms and Conditions. These conditions must be agreed upon and signed off by both parties to be imposed.

Why Is It Important To Establish Who Owns Copyright?

Let’s take the above example - an independent software developer who creates an app for a company. The app was the company’s idea and was commissioned by them. However, the code that created the app is the intellectual property of the creator (the developer) by default. So, if the developer is halfway through building the product and then has to leave the project, can the company use the code that has already been written?

This is where it depends upon the contract in place. Usually, if a creative is working as a freelancer then the copyright still defaults to the developer, but the use of the work may be licensed to the client/company. Where an agreement was not in place, a court may decide usage was implied when the freelancer undertook the assignment. However, if the work was incomplete or not paid for in full, company usage may not be permitted. Hence, it is essential to have a legal contract in place prior to work commencing.

When an agreement has been established, usage of the licensed work may come with certain stipulations. This will usually include the freelancer’s fee, but also might include where and how the work is used, and the company may be required to name the creator when using their work. This clause is often used by photographers for whom credited works can help build their portfolio, reach and reputation. Freelance journalists may also secure a byline for written works, whereas ghostwriters and copywriters rarely do.

In other contracts, the company may insist upon complete ownership of the copyright. Within a contract, transfer of copyright is usually granted upon full payment of services. So copyright not only protects who can use your work and how, but can also help creatives ensure payment for their work. For example, many businesses chasing outstanding invoices are left only with the option to outsource to a debt recovery service, but those who have contractually safeguarded their copyright until full payment is made may also opt to withhold licensing the work, meaning the company would be committing copyright infringement if they were to publish it. The latter option will usually get invoices settled with more haste. Although this is a lever to be pulled with caution and only when necessary.

Why Is Copyright For Creatives Important?

Creative people earn their living and reputations through the work they produce. If that work can be used by somebody else, free of charge, then your ability to make a living from your talent is severely limited. This is a key reason why copyright is automatically granted to the artists, except in some specific circumstances. If a company were, for example, able to use any image they found online without paying a fee, then that would make it very difficult for many photographers to generate income.

Let’s look at an example - an illustrator draws a picture of a character and posts it on social media. Somebody else takes this image and has it printed on t-shirts and then sells them at a profit. Fortunately, although this does happen, there is something that the illustrator can do about it. Not only will they be able to legally prevent the seller from continuing to use their image, but they can also pursue a case to receive compensation for the use of their intellectual property. Alternatively, or in addition, they may decide to sell or license the image to the seller on an ongoing basis so that they both might profit.

Having copyright protection is essential for creatives. However, this does not mean it’s wise to always hold onto ownership. Creatives make money from selling or licensing the usage of copyrighted material. Use of Intellectual Property should work for all parties involved, the creative and the company. So any contract regarding the use of copyright should be fair.

If you are a creative needing terms and conditions or a service agreement that protects your intellectual property, please get in touch. I’m also available to answer any queries you have over copyright, so don’t hesitate to reach out to Aubergine Legal.

Who Owns The Copyright When AI Has Been Used In The Creation Of The Work?

If you’re reading this section, please refer to the publication date of this article since AI legislation is moving…well…not fast in the UK, but it is developing nonetheless. Currently, copyright can only be assigned to human-created works. However, where an AI tool has been used but sufficient prompting, editing, and reworking has been applied by a person, the work may still be deemed human-authored.

Yes, it’s a grey zone as we have no specific legislation for AI in the UK yet, and its usage and application are governed by existing regulations. This is one of the key reasons that some creatives are hesitant to use AI to assist in any work they plan to hand over to a client, although they may still be harnessing AI to improve workflows, assist with admin, as a research tool, etc.

It's also worth noting that other countries have stricter rules over AI usage and copyright. The US and the EU tend to fall on the side that if an AI was used in the creation of the work, then the human influence must be significant to be able to attribute copyright to them. Basically, the work could not have been produced without the contributions of the author being paramount to its final state. If the UK were to follow the EU and/or US, as it often does, copyright assignment when using AI is likely to fall on the side of the AI tool, unless it can be proven otherwise.

Claims of unauthorised AI usage are a potential threat to the copyright of creatives, but that’s a blog for another day. As it stands, we would caution using AI to assist with work that needs to be copyrighted to you. If doing so, ensure you’re contributing to the work in a real way and keep a record of this.  You should also check the T&Cs of the AI tool provider – will they retain IP in the outputs or will you own them.  This does differ from tool to tool.  We also advise transparency. This can be included in a clause in your contract or in a separate document if your AI use is substantial.

Aubergine Legal are ahead of the curve when it comes to AI and its application in business. We have a whole section of AI resources on our website, including an AI Legal Toolkit. However, if you have any specific questions, please do get in touch.

Selling And Licensing Copyright

Copyright protection is automatic, but permission to use copyrighted work must be requested and agreed upon. This should be agreed upon within a contract. Whether you’re a photographer contracted to take photos for a large event or even if you’re just employing a friend to build you a website, you must establish who is going to own the copyright to the work produced.

As a business owner, there's often no sense in commissioning something to be created and then not owning or licensing the copyright. Not having a formal agreement in place may mean that permission to use the work could cease at any time.

Likewise, as an artist, it’s important to consider carefully what your work is worth and ensure you’re not exploited. For example, whilst a scriptwriter may be happy to hand over their script for a small fee, they may feel very differently in a few years if the buyer has made it into a lucrative Netflix series. They will probably wish they’d included stipulations in their licensing agreement as opposed to handing over the full rights. Copyright clauses don’t only protect you, they allow you to consider a range of scenarios and safeguard for future possibilities.

Most creatives include copyright and intellectual property terms of use within their terms and conditions. For larger projects or higher cost commissions, a separate contract may be required. This might be referred to as an Assignment of Copyright.

If you’d prefer to include copyright stipulations in your terms and conditions, then Aubergine Legal can help you draft this clause, ensuring that you’ve covered every angle and circumstance. We are also able to draft you an Assignment of Copyright, which can be used by the creative or the commissioner as a standard contract or a unique document to cover a specific project.

If you're interested in our online shop, or our AI Legal Toolkit, make sure you check it out below: