Who owns the work? IP clauses for freelancers and agencies

What is an intellectual property clause?

An intellectual property clause decides who owns what is created under a contract, and what each side can do with it afterwards. For a freelancer, consultant or agency, it settles whether the client owns the work you produce, whether you can reuse any of it, and when ownership changes hands.

Intellectual property (IP) includes copyright, design rights, database rights, trade marks and patents. For most creative, technical and consulting work, copyright is the one that matters: it protects original work such as writing, software code, graphic design, photographs and video. An IP clause usually combines definitions, an assignment or licence, a moral rights waiver, and warranties and indemnities.

Who owns the work by default?

In the UK and the US, whoever creates a piece of work generally owns the copyright in it, unless they made it as an employee or a written agreement says otherwise. A client doesn’t become the owner just because it paid for the work, although courts often find it has at least an implied licence to use the work for the purpose it was commissioned for. In the EU, the position varies by country.

In the UK

Under section 11(1) of the Copyright, Designs and Patents Act 1988, the author of a work is the first owner of the copyright in it. The main exception, in section 11(2), is work made by an employee in the course of their employment, which belongs to the employer unless they agree otherwise. A freelancer or contractor isn’t an employee for this purpose, so they generally keep the copyright unless they assign it, and an assignment must be in writing and signed by, or on behalf of, the person assigning it (section 90(3)).

In the US: what is a “work made for hire”?

A “work made for hire” is work that belongs to the hiring party from the start, because the law treats the hiring party as its author. Under 17 U.S.C. § 101, it covers work made by an employee within the scope of their employment, and specially commissioned work in one of nine listed categories (such as a translation or part of an audiovisual work) where both parties sign a written agreement saying so. Anything else an independent contractor makes stays theirs unless they sign a written assignment.

That’s why US contracts often call the deliverables “work made for hire” and add a back-up assignment in case they don’t qualify, as a logo or bespoke software may not.

In the EU

It depends on the country: EU rules on who owns commissioned work vary. In some EU countries, such as Germany, copyright itself can’t be transferred during the author’s lifetime, so contracts grant rights of use rather than transferring ownership. Some countries also read grants of rights narrowly, so uses a contract doesn’t clearly cover may stay with the author.

Licence vs assignment: what’s the difference?

An assignment transfers ownership of the intellectual property to the client; a licence gives the client permission to use it while you keep ownership. After an IP assignment, you’d need the client’s permission to reuse the work. Under a licence, what the client can do depends on the licence terms, and a few words make a big difference:

Clients often have good reasons to want to own bespoke work, such as a logo they’ll register as a trade mark. A licence tends to suit material you’ll reuse, such as templates and code libraries. Many contracts do both.

Background IP: keep what you already own

Background IP (or pre-existing IP) is what each side owned before the contract or develops separately from it: for you, typically your tools, templates, code libraries, design systems, methods and know-how. Foreground IP is the new work created for the client under the contract. A clause that doesn’t separate the two can hand the client things you need for every other job.

12.1 The Supplier hereby assigns to the Client all Intellectual Property Rights in the Deliverables and in all materials, software, tools and know-how created or used by the Supplier in connection with the Services, whether created before or after the date of this Agreement.

A more balanced version keeps each side’s background IP where it is:

12.2 Each party retains ownership of its Background IP. To the extent the Supplier’s Background IP is incorporated in the Deliverables, the Supplier grants the Client a non-exclusive, perpetual, royalty-free licence to use it as part of the Deliverables. Nothing in this Agreement prevents the Supplier from using its general skills, knowledge, experience and know-how, subject to clause 15 (Confidentiality).

Ownership on payment, not on signing

If ownership passes when the contract is signed or when the work is created, the client can own your work before it has paid for it. Wording such as “hereby assigns” generally takes effect immediately, including for work not yet created, so each deliverable belongs to the client as soon as you make it.

12.3 The Supplier hereby assigns to the Client, by way of present assignment of future rights, all Intellectual Property Rights in the Deliverables with effect from their creation.

A common alternative is for ownership to pass “on receipt of payment in full”, with a licence so the client can use the work in the meantime. That ties ownership to your payment terms.

Moral rights waivers

A moral rights waiver is a written agreement giving up your moral rights: personal rights of an author, such as the right to be identified as the author and to object to derogatory treatment of the work (broadly, changes that distort it or harm your honour or reputation). In the UK, moral rights can’t be assigned, but they can be waived in writing (section 87 of the 1988 Act), so client contracts often include a waiver alongside the assignment.

A waiver means you can’t rely on those rights if the client edits your work or publishes it without your name. If credit matters to you, you can ask for a waiver that keeps a right to be credited, or covers only the changes the client needs. In the UK, those two rights don’t apply to computer programs anyway.

Moral rights tend to be stronger in much of the EU, and in some countries can’t be waived entirely. In the US, federal law gives moral rights only to certain works of visual art, though many US contracts still include a waiver.

Portfolio rights: can you show the work?

Not automatically. Once you’ve assigned the copyright, showing the work on your website or in a pitch may technically need the client’s permission, and a confidentiality clause can stop you showing unreleased work or naming the client even where you keep the rights. A short portfolio clause deals with both:

12.6 The Supplier may reproduce the Deliverables, and name the Client, in its portfolio, website and pitch materials once the Deliverables have been made public by the Client, subject to clause 15 (Confidentiality).

Third-party and open-source components

You can only transfer rights you own, so third-party material needs separate treatment. Many deliverables include things you didn’t create, such as stock photos, fonts, plugins or open-source code, which come with their own licence terms and usually can’t be assigned to the client at all.

Watch for promises that the deliverables are “wholly original”, or assignments of “all rights in the Deliverables” with no exception for third-party material: you could be in breach from the day you deliver. A common fix is a carve-out saying third-party materials are supplied under their own licence terms, which you’ll identify. For software, clients may ask you to avoid “copyleft” open-source licences, which can require software that includes the code to be shared on the same terms if it’s distributed.

If you use AI tools, check this part of the contract too: some clients restrict their use or ask you to disclose it, and the law on who owns AI-generated material is still developing and differs between countries.

Warranties that your work doesn’t infringe

An infringement warranty is a promise that the deliverables won’t infringe anyone else’s intellectual property. It’s often backed by an indemnity: a promise to cover the client’s losses and legal costs if a third party claims they do (in the US, “indemnification”). Clients ask for these because they may be the ones sued; the question is how far the promise reaches.

14.2 The Supplier warrants that the Deliverables will not infringe the rights of any third party, and shall indemnify the Client against all losses arising from any claim that they do, including claims arising from materials supplied by the Client or modifications made by or for the Client. Clause 16 (Limitation of Liability) shall not apply to this clause.

More balanced versions cover only your own work, exclude client materials, agreed third-party components and changes you didn’t make, and sit inside the liability cap. Some add “to the best of the Supplier’s knowledge”, particularly for patents, which can be infringed without any copying. Our guides to indemnity clauses and limitation of liability clauses explain how these fit together.

IP ownership in the UK, EU and US compared

The rules behind IP ownership in contracts are similar in the UK and the US, while in the EU they vary by country. Treat this as a map, not a statement of the law that governs your contract.

If the contract doesn’t say which country’s law applies, see our guide to governing law and jurisdiction clauses.

What to ask for in an intellectual property clause

Most improvements are short additions to the client’s wording, not a rewrite. Points worth raising:

• Assignment of the final, bespoke deliverables only, not drafts, unused concepts or everything you “use”.
• Ownership on payment in full, with a licence until then.
• A carve-out for your background IP, licensed only for use as part of the deliverables.
• Freedom to use your general skills, knowledge and experience.
• Portfolio rights once the work is public.
• An exclusion for third-party and open-source material, with a list of what’s included.
• A moral rights waiver that keeps credit where it matters to you.
• An infringement warranty limited to your own work, inside the liability cap.
• A matching promise from the client about the material it gives you.

How LegalSling helps

LegalSling reads the contract you’ve been sent and explains the IP clause, and the definitions it relies on, in plain English, with a note on what it means for each side and which way it leans. Terms like the ones in this guide are flagged in the document with the exact words highlighted. You can ask questions such as “Does this assignment cover my templates?” and get answers drawn only from the contract, with paragraph references. It takes the governing law from the contract’s own wording rather than guessing, and checks every quote it shows against the text. You can add your own notes and turn everything into a brief for your lawyer. It explains; it doesn’t tell you whether to sign. See how it works, or read about LegalSling for freelancers and agencies.