It is becoming increasingly common for businesses large and small to hire freelancers to do work for them online.
At its best, a relationship with a freelancer can provide cheaper, better and faster work than hiring a new employee or trying to train someone to do the job internally. However, when it’s at its worst, the relationship between a freelancer and employer can be quarrelsome and even litigious.
While I focus on this blog a great deal about helping freelancers protect themselves, the truth is that either party in the freelancer/employer deal can create problems. If you are hiring freelancers, whether for a quick job or an ongoing one, you need to take reasonable steps to protect yourself.
The simple truth is that the laws, when it comes to freelancers, don’t always do a great job protecting the people who hire them as it is assumed they have the upper hand to start with. However, online, that is less and less true, especially as smaller companies and sole proprietors hire freelancers to do work, including freelancers that may be more savvy and experienced with these issues than they are.
With that in mind, here are three questions you should ask yourself when negotiating with a freelancer for their work and also before accepting work and making the payment.
1. Is the Work Original?
While most freelancers perform their duties in good faith, some do not and will try to pass off old content as unoriginal.
That can come back to bite you directly if that unoriginal content also happens to be infringing. Since the work will be posted to your site, it’s your name and your site that are in the immediate firing line for any legal action, whether it’s a cease and desist letter, a DMCA notice or even a lawsuit.
However, some freelancers have also been known to also recycle their previous work. While that doesn’t create a legal issue, provided they didn’t grant anyone else an exclusive license to it, it does mean that you’re paying money for something that isn’t original or unique, even if you might have been under the impression that it was.
In short, it’s always best to know if the work you’re paying for has been used somewhere else before.
How to Answer It: When negotiating with a freelancer, seek out an originality guarantee. While this might not be as important with some types of content, such as custom plugins or other behind-the-scenes work, you definitely want to make sure the marketing copy you’re having written or the new logo being designed are 100% original.
Before paying for a work and completing the contract. Check to see if it has been duplicated. You can use Copyscape or PlagSpotter to check for copied text and, for images, you can use Google Image Search.
A few minutes of time to check can save serious headaches down the road.
2. What Rights Do I Have to the Work?
Under U.S. law, just because you paid for a work to be created doesn’t mean that you own the work when it is finished.
Barring any contract before the start of work (and other qualifications being met), freelancers retain copyright control in the works they create. This is in stark contrast to employees, who always transfer copyright ownership to their employer when they create works was part of their duties.
This means, before you sign the check, you need to figure out just what you are paying for and make sure that you don’t find yourself accidentally infringing an implied license in the work.
How to Answer It: Ideally, issues of content ownership should be decided in a contract before the work is started. This way, if the purchaser wants to obtain full copyright or an exclusive license, they can negotiate for it and sign a contract to that effect, likely making it a work-for-hire.
Barring that, it’s still important to hammer out exactly what you’re paying for and get that in writing. Do you want to transfer the copyright? Receive an exclusive license to use it? Or maybe just a time limited one that prohibits the creator from reusing the content within a time frame?
Whatever you’re doing, get it in writing, especially if you’re transferring the copyright as it is the only way to do it under the law.
3. Who and Where Is This Person?
This one seems simple, but online it’s easy to do business with others and never know even know their name. This can make things difficult if problems arise later. For example, if you discover later that the work was infringing someone else’s site or an earlier creation, getting answers, much less any kind of reparation, can be impossible without knowing who you were working with.
Furthermore, geography plays a role in it too. Having a legal dispute, whether over copyright or contract issues, is very different when the other person is next door versus half a world away.
It’s important when dealing with freelancers, even ones that you meet on dedicated sites, to know who you are dealing with and where you can find them if you need to.
How to Answer It: Make sure to get all of the relevant information you need on the freelancer and, most importantly, verify the information the best you can. Generally, it’s pretty trivial to know if someone has given you good information or not.
Likewise, when writing your contracts, make sure that you set whatever jurisdiction you would want the case to be heard in should there be a legal dispute. Obviously, you’d want it as close to you as possible, but it’s more important to have certainty in the matter than it is to have it in the best place possible.
It’s easy when working on a project with a freelancer to get excited about it and to skip some basic steps that can prevent the project from taking a nasty turn later. Take the time before starting work to talk things out, find out who you’re working with, what you’re buying and under what terms.
Doing so not only protects you, but protects honest freelancers too. After all, in a situation where there is a lot of uncertainty, to a freelancer, you could just as easily be the bad actor and out to take advantage of them.
Clarity protects everyone involved and if a project is worth doing, it’s worth taking the time to do it right.