HOW TO PROTECT YOUR FREELANCE WORK
QUESTION FOR DAN O’DAY:
As an independent writer/producer, I have a clause in my contract stating that the client may not use any advertising copy I have created for them in the event they request a refund.
(I offer a money-back guarantee on my services.)
But how do I really go about protecting myself in that regard?
Well, obviously that's a question to ask an attorney who specializes in intellectual property law.
But my layman's suggestion is that your contract state that:
If the client rejects your finished work and requests a refund, the client will not be allowed to use any aspect of the work you provided.
- You retain the copyright to all work created.
- You will temporarily assign use rights to the client during the life of the contract.
- If and when the contract expires without being renewed, the client has the option of purchasing from you the rights in perpetuity to the created works for a fee to be calculated according to a set formula that has been determined by your company. (How you calculate that fee is up to you, but it should be spelled out in the contract.)
That way, the interests of both parties are protected.
You don't want someone using your work without paying you,
You also don't want someone using your work forever without paying you, while the client doesn't want to pay you for a year and then — if for whatever reason he chooses not to renew — not be able to use the advertising that has become associated with his company.
So the point of such wording isn't to threaten someone. It's to make clear who owns what in a manner that is fair to both parties.
The buy-out fee for the advertising might be, for example, 150% of the one-year fee.
You'd also want to know what to charge if they want to continue using specific characters or slogans you created for them.
In television, for example, if someone writes an episode of a TV show that introduces a new character, the writer is entitled to residuals for all future shows in which that character appears -- even if the writer isn't involved in those episodes.
And again, remember, I ain't no lawyer.