Many founders engage freelancers to support their startup. This arrangement is a win-win because the founder can get critical projects done at a competitive price and the freelancer can market themselves directly to the consumer, win more engagements, and keep a larger share of their fee than if they sold their services through an employer.
But the gig economy begs the question. If a founder engages a freelancer to, let’s say, create a marketing illustrations, then who owns that intellectual property?
According to federal copyright law, the founder owns a copyright in any copyright eligible material that is the product of a “work made for hire.” Where a work is made for hire, the employer, and not the employee-author, owns the copyright. The “works made for hire” exemption is a break from the normal copyright rule where the author (or in our example, the freelancer) owns a copyright in her work. The Copyright Office published a detailed circular on works made for hire, available here.
So there you have it. You are free engage a designer to develop your logo without fear of losing ownership of the mark. Why? Because trademark rights are based, in part, on using the mark in commerce. Your freelancer is not going to use whatever they create. They are simply want to perform services for the gig and get paid. Since your business, and not the freelance designer, will use the mark in commerce, only your business can qualify for trademark registration.
To make sure things are crystal clear, many gig economy marketplaces have policies that in keeping with copyright and trademark laws. For example, Fiverr makes it clear: “On the Fiverr platform, buyers are granted all rights for the delivered work, unless otherwise specified by the seller on their Gig page.” Be sure to check and double-check the details of the gig listing to make sure that the delivered work is yours.
Your small business has more open projects than you can do yourself. We are in the gig economy after all so do not be squeamish about engaging freelancers. Tinch Law Firm can advise you how to collaborate with your team and freelancers without compromising rights in your intellectual property. Book your free intellectual property assessment here: https://calendly.com/tinchlaw/cc.
J. Greg Tinch - Founder and Principal of Tinch Law Firm, P.C. - is a patent attorney helping clients realize wealth and legacy in their ideas. Greg has counseled clients from early-stage startups to the federal government on patents, trademarks, copyrights, and transactional and entity formation aspects of business law. Greg's intellectual property practice is informed by his interest in public policy, experience working in Congress and litigating civil cases in Maryland.