IP Assignment and Background Asset Carveouts in an Independent Contractor Agreement: A Guide for a Copywriter

Introduction

When it comes to working as a copywriter, understanding intellectual property (IP) ownership and background asset carveouts is essential. These elements are crucial to ensure you retain control over your creative tools and the content you produce. Failing to address these aspects in your independent contractor agreement can lead to disputes and lost opportunities down the road. If you want to safeguard your work and clarify your rights, consider how IP assignment and background asset carveouts can work for you.

What Is IP Assignment?

IP assignment refers to the transfer of ownership rights in intellectual property. In simpler terms, it means that when you complete a project and your client pays you, they often expect to own the content you created. This expectation stems from the idea that payment equals ownership. However, as a creative, you need clarity about what is being handed over and what rights you retain. It’s vital to define these terms upfront to avoid misunderstandings later on.

What Are Background Assets?

Background assets are the proprietary tools, techniques, and methods you use to create your work. Think of them as the secret ingredients to your recipe for success. A carveout in your agreement protects these assets, ensuring that while your client has access to the final product, your unique processes and methods remain your own. This distinction helps both you and your client understand the boundaries around ownership and usage.

Work Product. Upon full payment of the Fees provided in the SOW, Consultant agrees that the deliverables, work product, content and other materials created, developed or conceived by Consultant for Client for purposes of this Agreement as provided in the SOW (the “Work Product”) shall be the sole and exclusive property of the Client. Consultant hereby irrevocably assigns to Client all right, title and interest worldwide in and to the Work Product, including all copyrights, patents, trademarks, trade secrets, and other intellectual property rights therein. Consultant acknowledges that to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 or any similar or analogous law or statute of any other jurisdiction and such copyrights are therefore owned by Client. To the extent that the Work Product and/or the results and proceeds of the Services may ever be determined under the laws of any country not to be a “work made for hire,” Consultant hereby confirms that effective on the date of creation of the Work Product, it assigns (or has assigned) to Client all right, title and interest thereto (including all copyright and associated rights, extensions and renewals, and all causes of action appurtenant thereto) throughout the world. If Consultant has any rights in any jurisdiction, including without limitation “artist’s rights” or “moral rights,” in the Work Product that cannot be assigned, Consultant hereby unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or Client’s customers.

Background Assets. “Background Assets” are the materials, tools, utilities, techniques, technical frameworks, data models, object models, methodologies, know-how and information (both in object code and source code) made available to Client by Consultant under this Agreement that are proprietary to Consultant. This Agreement grants Client a non-exclusive limited right to use the Background Assets and does not constitute a sale or convey title or ownership of the Background Assets or any intellectual property rights therein to Client. Consultant is and shall remain the sole and exclusive owner of all right, title and interest in and to the Background Assets, including all improvements or modifications made thereto, and all intellectual property rights embodied in or related to the Background Assets.

This balance between IP assignment and background asset carveouts protects both you and your client. It clarifies what your client can expect while also ensuring you can continue to leverage your core methods and frameworks in future projects.

Example Scenario

Imagine you’re a copywriter who uses a unique content creation framework you've developed over years of practice. You land a client who needs a series of blog posts and expects to own the final articles upon payment. With a clear carveout for your background assets, you can confidently hand over the blog posts while retaining ownership of your proprietary framework. This way, you protect your methods and also deliver the expected results to your client, creating a win-win situation.

How Counsel Club Helps

Counsel Club re-imagines legal for startups, freelancers, and creative entrepreneurs. Our platform allows you to search for lawyer-drafted forms for startups, freelancers, content creators, and other creative entrepreneurs. Our platform guides you through modifications, both to the contract and the scope of work. Counsel Club has the most sophisticated drafting tool on the market, and it was designed and developed by lawyers. If you want more help, reach out to a Counsel Club lawyer through our Concierge program. Our legal agent, Amicus, was trained on proprietary legal data to be your best legal assistant. Finally, legal for today, that is fast, protective, and cost effective.

FAQs

What is the difference between work product and background assets? Work product refers to the specific outputs created for the client, while background assets are the proprietary tools and methods you use to produce that work. Each serves a different purpose in your contract.

Does the client get a license to background assets? Yes, the client generally receives a non-exclusive, limited right to use your background assets for the project at hand, but they do not own those assets.

Are source files included in the work product? Typically, the details of what constitutes the work product, including whether source files are included, should be clearly defined in your agreement.

How do I handle third-party or open-source components? It is crucial to document any third-party or open-source components in your SOW to clarify their usage and avoid ownership disputes.

How do I document the split between work product and background assets in the SOW? Clearly define both terms in your SOW and specify which materials fall under work product and which are background assets. This documentation will help minimize misunderstandings.

Final Thoughts

Addressing IP assignment and background asset carveouts in your independent contractor agreements is not just a good business practice; it is a necessary step to protect your creative endeavors. Consider adding these clauses to your contracts now to ensure clarity and prevent future disputes. If you have questions or need assistance with drafting, don’t hesitate to reach out to Counsel Club for the right support.