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How to protect an artist or creator’s rights in contracts.

Consider a self-employed artist in the UK who is offered a fixed-term employment contract. This contract that states that anything designed and produced under the contract becomes the property of the other party. In addition, their intellectual property is at risk of appropriation, plagiarism or modification at the expense of the artist future livelihood and reputation. Are the intellectual property rights in contracts clearly understood?

The artist is then offered a rider in her contract by the other party that states that their IP rights should be excluded from the contract. However, the artist feels that this is not clear or comprehensive enough; there are too many ambiguities in the contract and conditions for employment. Since the artist’s work and creations are likely to be organically produced and responsive to the task in hand, the artist is concerned about any liabilities post-contract.

The artist is self-employed the rest of the time outside of the contract. The concern is about how self-employed artists can protect their work when commissioned by other individuals or organisations. How does the basic law protect the rights over the work produced by self-employed artists?

Self-employed artists and protection of their works

There is no appropriate definition of self-employment in the United Kingdom (“UK”) under any legislation. The courts in the UK have laid down the rights and responsibilities of self-employed, and most of the rights of self-employed artists originate from the contract itself.  With certainty, the rights of the individual should be expressly stated and in the contract and agreed before signing. For example, the artist may require to be explicitly credited for their work, or that their work is accessed at specified times or places or specified audiences.

The criteria used to establish the individual’s employment status (either employee, worker, or self-employed) is also based on the precedent laid down by case laws and on what the contract states. An individual’s employment status is also based on how the arrangements function in reality. Also, the condition of employment is the key to establishing the legal safeguards that a self-employment person benefits from while at work. In addition, the intellectual property rights in contracts need to be clearly understood by all parties.

Self-employed artists’ rights over their work

In general, a contractual relationship puts on the artist fewer responsibilities to transfer intellectual property rights to the employer than as an employee. A self-employed artist often owns intellectual property rights in the contract, frequently including rights to works produced at the client’s request. A self-employed artist usually gives up ownership rights only if required under the contract under which they work. However, there are exceptions, such as when a contractor is expressly engaged to create a particular piece of work. Where no explicit agreement exists between the parties and a dispute emerges, the Court usually considers all the circumstances relating to the relationship between a self-employed artist and the other part.  The Court then decides who owns the rights over the work.

Caselaw Sprint Electric Ltd v Buyer’s Dream Ltd

In the case of Sprint Electric Ltd v Buyer’s Dream Ltd, the UK High Court examined who held the copyrights produced by a service provider in computer software. The Court considered who was inadequate in IPR ownership under the terms of the Express Contractual Conditions. The dispute occurred between the claimant Sprint Electric Ltd (SEL) and Dr. Aristides Potamianos, former SEL Director and the creator. This dispute was about the design, development, and sales field of SEL used SEL in the software code digital direct current motor controller.

Buyer’s Dream Ltd (BDL), the service company of Dr. Potamianos, signed programming service agreements with SEL. The defendant was, in fact, exclusively responsible for developing all the digital elements of SEL’s goods. BDL controlled source code access, giving SEL sufficient source code to load and execute the firmware on engine controllers. However, it is necessary to have access to and permission to change the source code to improve, modify, or repair problems. When Dr. Potamianos stopped debugging and developing his products, a lack of access to source code was an existential danger to SEL’s product viability and indeed to its existence.

Detail in contract

For violations of the contract and the right for SEL to compel the supply of all source code and related documentations, SEL sued Dr Potamianos and BDL. The court stated that the rights and responsibilities “depends on the true relationship between the parties and not on the label they choose to use to describe that relationship.” Multiple terms indicating a relationship of employment existed in the contract between SEL and Dr Potamianos, such as pay, bonus structures, and a termination provision. Therefore, the court held the copyright for the source code existed with SEL as it had authorised its single programmer to do so. The court also held that the connection between the parties was that of an employer and the employee.

Griggs vs. Evans

Furthermore, in the case of Griggs vs. Evans which involved a freelance designer, the court held that: “Because the designer is not an employee of the company, the legal title to the copyright belongs to him, because the Copyright Act says so; but the equitable title belongs to the company. This means that the designer can be called upon to assign the legal title to the copyright to the company; and, if he refuses, the law will compel him to do so. It seems to me that when a freelance designer is commissioned to create a logo for a client, the designer will have an uphill task if he wishes to contend that he is free to assign the copyright to a competitor. This is because, in order to give business efficacy to the contract, it will rarely be enough to imply a term that the client shall enjoy a mere licence to use the logo, and nothing more. In most cases it will be obvious, it will “go without saying”, that the client will need further rights. He will surely need some right to prevent others from reproducing the logo.

From the above legal decisions, and precedents laid down by the court, it can be concluded that the employment contract carries significant importance in the relationship between a self-employed artist and the client.

Your Intellectual Property Rights in Contracts

Are you a self-employed artist or creator who needs to protect your work or review your contract for your services?

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