Freelancers' Questions: Who owns the IP rights in a freelancer situation?

Freelancer’s Question: I’m a freelancer floral designer with an existing client but new client representatives, and they recently took on three large weddings.

Aware I recently won a medal at the Chelsea Flower Show, the new representatives asked me if they could share some pictures on their Instagram. I said ‘yes’ and provided some wording.

Following some very unprofessional conduct on their side this week, including some distressing message sent to me, I have made the decision to not return to see the new representatives. But here’s the bigger issue. I have posted a picture of my (branded) van in front of one of the venues this week, with a supporting caption. I have also posted a zoomed-in, in-detail shot of a bouquet which I created.

To my horror, I then received a catty WhatsApp message from the new representatives saying that I “must remove these pictures on my Instagram,” as I was only “employed” as a freelancer, and so have no right to post any of these pictures, because I was only ever working on their behalf.

There is no written contract in place and under the previous representative, such online posts were never an issue. I am not sure exactly what to do, but more importantly where do I stand, legally? Also, I am yet to be paid the remaining balance. Please help!

Expert’s Answer: Firstly, we are sorry to hear that you have received upsetting messages from your client, and that this business relationship is no longer working. It can be very disheartening when things turn sour!

Your bind: in a nutshell

Based on the outline of your situation, we understand that you posted some pictures on your personal Instagram account, with images of the bouquets that you created yourself, and your own business branded van.

Then, the business that you were engaged by, as a freelancer, asked you to remove these pictures from your account because they believe that they are entitled to control the copyright of the designs since they “employed” you.

Therefore, the main issue here is around Intellectual Property Rights (‘IPRs’). You also have the issue of unpaid fees, which we will discuss after some IP pointers.

What is the legal position for self-employed suppliers?

In England and Wales, the Copyright Designs and Patents Act 1988 (the CDPA) regulates the IPR of copyright.

There are several criteria in the CDPA for a work to be protected and attract copyright protection.

Copyright gives specific and exclusive rights to individuals that have created an original work of authorship. This includes literary, dramatic, musical, artistic and other intellectual works. Here, your arrangement of the bouquets and the pictures of the bouquets are creations that fall within these categories of works.

Skill, judgement, effort

Works must also be original, which means that the author (in this case, you) must have created the work through their own skills, judgement and effort. This work must not copy another individual’s work. In certain instances, even a short line of text can attract protection. The work also needs to be fixed in nature, which is the case in your situation.

From these facts, we believe that your work can be considered original, therefore it is protected by copyright. Copyright in artistic works subsists for 70 years after the death of the author, so the duration has definitely not yet expired!

Who owns this copyright?

The general rule is that the first owner of copyright will be the author (Section 11(1) CPDA 1988).

There are exceptions to this rule, which include works made by a person in the course of their employment or work assigned under a contract.

Under Section 9(1) CDPA, the author is defined as the person who creates the work. Therefore, the first owner of the copyright in the bouquet and the images is you.

• Where works are made by an employee in the course of employment, the employer will be the first owner of the copyright in the work, subject to any agreement to the contrary (Section 11(2) CDPA). As mentioned above, you provided your services as a freelancer and therefore this exception does not apply here.
• Ownership of work can also be assigned to a third-party (Section 90 CDPA) by way of contract (or any other such document where there is a written signature of the first owner (the author). This can be seen in service contracts between freelancers and clients, whereby the IPRs in the deliverables are assigned to the client upon payment for the goods/services.
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Freelancers like you have moral rights, too

However, since there is no written contract between you and your client, there has been no assignment of the IPR in the bouquet and the images (a recreation of the bouquet), and you are still the owner.

As the owner of created material, you own the rights attached to this creation, namely copyright and moral rights such as the right to be identified as the author. The same principle applies to the content on Instagram, which is the property of the person who posts it. Therefore, you have no obligation to remove the images.

Non-payment of fees

Unpaid fees can be one of the most difficult and recurring issues in the freelancing community (which we have also covered here for FreelanceUK’s sister website Contractor UK).

As a first option, an amicable message with the provision of an invoice with clear payment terms should be explored. If your client continues to withhold payment for your goods and services, and in consideration of the fact that you do not have any written terms in place with them (which would usually deal with payment and default), you can rely on the doctrine of quantum meruit.

Under English law, quantum meruit claims can be made in situations of non-payment, which are not dependent on a contract, and allow a party to obtain reasonable payment for the value of work already completed on the basis of fairness.

How to move forwards

We hope this has been helpful for you. Situations like these always serve as a cautionary tale for freelancers on the importance of having a written contract in place.

We believe that legal protection should be available to all, no matter the size of your business - our Contract Portal provides automated and affordable contracts, created in minutes through a chatbot. Please do check it out to ensure you and your business are fully protected!

The experts were Ophélie Lejeune and Nathalie Pouderoux, legal interns at digital law firm Gerrish Legal, which has offices in Paris and London.