VIC Intellectual Property Law - Who has the IP Rights?

[Chris Ritmel]

I have been doing some part-time freelance work in the past few months. I help people design websites, and from time to time, writing marketing proposals.

To avoid IP issues, I only use pictures that I shot or what the clients provided me with. Therefore, in my service contract, I usually insert clauses suggesting I have full IP rights for my work (excluding what was provided by clients). My clients only have the right to use and any other rights as agreed. But people seem to disagree with this. More than one client demanded me to change these clauses.

I've gone through several contracts for designing services, and they seem to agree with me and their contracts are usually drafted in a way that is similar to mine.

My question is, who has the IP right for these websites or proposals that I made? Or at least, what is the "normal" way of approaching this under Intellectual Property Law?

Thanks. Any input will be appreciated.

 

[Victoria S]

Hi Chris, it depends on what specific components of web design you are talking about.

Photographs: copyright belongs to the person who took the photograph or otherwise acquired the photograph. If you are given photos to use by the clients you are basically given license to use them (permission for specific purpose).

Writing / text: copyright belongs to the person who created the written work.

Design features of website including layout, colour scheme etc: copyright belongs to the person who created it.

However any of these things can be assigned or licensed in a contract. Therefore it is how you and your clients agree. Clients obviously want content or a website that is unique and that they have uninterrupted ability to use for as long as they want and change as they want. So if you retain copyright and only grant them the ability to use it, you can theoretically sell the same thing to 10 other companies and they no longer have something that is unique.

I do some legal content writing occasionally and I offer 2 prices, one that comes with licence to use the content but I can resell the article to someone else if I want, and one that comes with full assignment of copyright.

 

[Kim Walters]

Agree with Victoria.

If you assign all the IP in your copyright work, then you are likely to charge a premium price to the client because you are giving up the full bundle of your exclusive rights.

If you licence out or only give up some of your rights (not the whole bundle), while still retaining the right to commercialise your work with other clients, then the fee that you charge to the client will not likely be as premium as a full ownership transfer.

In sum, a client who demands a full transfer of your IP rights should be willing to pay (a higher price) as you are giving up all your rights to the copyright work (and you will not be able to use it again without infringing the IP rights of the new owner, that is, your client and not you).