Freelance design contract offer - Regarding the "ownership of work product" - what is really owned?

Question

I am relatively new to working in design, based in the UK, currently freelancing and have been working with one company in particular (also UK based) for many months now. They have recently suggested working on a monthly retainer basis and have provided a contract from their end for me to sign.

The section below is taken from the contract:

Ownership of Work Product. The Parties agree that all work product, information or other materials created and developed by Independent Contractor in connection with the performance of the Services under this Agreement and any resulting intellectual property rights (collectively, the “Work Product”) are the sole and exclusive property of Client. The Parties acknowledge that the Work Product shall, to the extent permitted by law, be considered a “work made for hire” within the definition of Section 101 of the Copyright Act of 1976, as amended, (the “Copyright Act”) and that Client is deemed to be the author and is the owner of all copyright and all other rights therein. If the work product is not deemed to be a “work made for hire” under the Copyright Act, then Independent Contractor hereby assigns to Client all of Independent Contractor’s rights, title and interest in and to the Work Product, including but not limited to all copyrights, publishing rights and rights to use, reproduce and otherwise exploit the Work Product in any and all formats, media, or all channels, whether now known or hereafter created.

It is a fintech company so i do not expect them to, for example, profit much from selling clothes, or posters with my work on it. However, they are interested in the style of branding, illustration and general design of this website https://salesforce.com/ which uses a lot of colourful and playful imagery / illustrations.

Other than branding, and general webpage images, i will be providing illustrations for the website or blogs etc, including potentially a brand character or series of characters. And I believe they may be interested in producing physical items from some of this work to occasionally distribute at events etc.

I see that they would like to own all this work outright, however, I have a few concerns:

1. What would they really own? I am not so concerned about general webpage images. However, things like illustrations or character design would reflect my personal style of art/design. I would not want anyone other than myself to have any right to anything that reflects my style of work. That is, I don't mind producing a character concept, but would not want the actual style of the character/design to be owned. E.g., As future designs for other companies may likely also use a similar style. Not to mention artistic style is very personal thing. Of course I see many illustrators have their own unique style, which is used across numerous businesses, albeit different illustrations. But is an artistic style something that needs to be addressed in a contract to prevent anyone other than yourself from inadvertently gaining any rights to this?

2. Could this have an impact on my future work? Similar to above, e.g., if future designs for other companies also used a similar style. What are the copyright implications of this? What should be borne in mind?

3. Does anything about this contract section concern you? If so, how would you suggest to address this?

4. Do you have any general recommendations for what to look out for, or anything not mentioned above?

Many thanks for any information

Answer 1

If you sign, whatever you will draw, paint, write or create otherwise during the contract would be totally out of your control and usage, no matter you have created it. One night, well beyond the normal work hours and working at your home you may draw a new character. You cannot sell it to others nor distribute it by any means if there's no explicit sentence in the contract which part of your makings are not their property. The local law can limit the rights of the client, but do NOT sign before there's a written (I said written, not spoken) clause which part of your work is yours and it tells your own part contains your older creations, everything you create after the contract time and everything else you probably want to be included, for ex. what you draw at home. As suggested, get a lawyer, I'm not one. Know that the client wants to maximize what he gets, do not expect anything else.

Answer 2

--- I am not a legal professional in any way, shape, or form. Hire a lawyer to review an agreement if you are truly concerned about one. ---

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1. What would they really own?

Everything. All that is created, sketched, doodled, etc. associated with the work done for the company is theirs, outright. The contractor does not exist in a legal sense. The contractor has no rights to any work produced for the company. The contractor is a "ghost artist" without claim to anything created.

This is fairly standard in a work-for-hire agreement and is no different than a direct employee of the company. However, contractors generally don't get any vacation time, sick leave, medical, etc unlike an employee.

A work-for-hire agreement means the artist performs the work... then legally treats the work as if someone else created it.

This clause is not out of the ordinary for a work-for-hire agreement.

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2. Could this have an impact on my future work?

Well the company will own the rights to everything which you may have created for them. The work can't freely be reused for anything without the company's expressed (written) permission. The company is NOT you and, again, the contractor has no rights to any work produced for the company.

In terms of legal standing, you are not the creator of any work you create for the company -- the company is the creator even though you performed the work. You don't legally exist where this work is concerned. You have no copyright to any of the work. The agreement means you are selling the copyright to the company along with the work. You have to treat the work the same way you treat any work created by any other artist/designer - with the same copyright restrictions.

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3. Does anything about this contract section concern you? If so, how would you suggest to address this?

No. As posted, it's fairly standard for a work-for-hire agreement. All rights are relinquished in exchange for payment. If you don't like work-for-hire agreements, then don't enter into them.

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4. Do you have any general recommendations for what to look out for, or anything not mentioned above?

No. I have zero knowledge about the company or your services. I could not possibly predict any pitfalls.

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Addendum....

Companies generally present a work-for-hire agreement because they do not want to be beholden to a contractor/artist in the future.

Companies want the freedom to not have to consider a contractor legally should they wish to reuse, recompile, restructure, or otherwise make use of any work a contractor has performed for them. Similarly as to how an artist is free to reuse or reengineer anything they created in the past -- the company wants that same unmitigated freedom. Work-for-hire agreements give them that.

Work-for-hire agreements are not often "malicious" in nature. They aren't trying to "take advantage" or "get one over" on an artist. The company is trying to ensure they aren't obligated, legally, to a contractor moving forward. Especially should the business relationship dissolve. Basically the company is just trying to cover their own ass.

Contract negotiations are just that -- negotiations. If you don't like the work-for-hire agreement which has been presented, present your own agreement and negotiate.

Work-for-hire agreements are no more troublesome and contain no more pitfalls than any other contract/agreement.

Answer 3

These are multiple questions. In my opinion:

• a freelancer is a freelancer if there are multiple clients. Not sure what your case is, but a person working remotely for a single client, that's not really a freelancer. With that out of the way..
• you client(s) can name any conditions they need, and you can quote anything you need, and this is part of the negotiation between two parties. Yes, if there's a contract, you discuss the terms, and you put that in writing. If they need the rights for the work, which basically they are probably entitled to, then you need to charge accordingly and move on.
• Salesforce did not invent that particular style of illustration, they probably just hired some designers to create everything they need in that specific style. They probably made them sign that they do not own any of the work. Then, other brands use a similar style, but true SF is a huge company so they can afford to keep a high-quality, consistent style. Whether that style is very unique, well I don't think so.
• Lastly, is your own work really that unique, like nobody else does your style ? What's stopping you from using the same style for other clients ?

I have seen similar questions and personally not sure why some designers get stuck into this mindset.

If your work is that good, it should be easy to find more clients: do the same thing, charge more.