IP ownership: who owns what you create, and how to make it clear

The default rule — and why it matters

Section 11(1) of the Copyright, Designs and Patents Act 1988 provides that the author of a copyright work is the first owner of the copyright in that work. Section 11(2) creates an exception: where a work is created by an employee in the course of their employment, the employer is the first owner. Freelancers are not employees. The section 11(2) exception does not apply to them.

The practical consequence is stark. A client who commissions a freelancer to design a logo, build a website, write copy, or produce any other copyright work does not automatically own the copyright in that work — even if they have paid for it in full. Without a written assignment, the client receives at best an implied licence to use the work for the purpose for which it was commissioned. That implied licence may not be transferable, may not cover modification, and may not extend to uses beyond the original brief.

For most commercial clients, this is not the outcome they expect or intend. For freelancers, it is a position of significant legal strength — and one that should be documented clearly in every contract, whether the result is an assignment to the client or a licence on the freelancer's terms.

Assignment vs licence — the fundamental choice

Every IP clause in a freelance contract makes one of two choices: assign the copyright to the client, or licence it. The choice has permanent consequences.

Pre-existing IP — the carve-out that protects your business

Whether you assign or licence the work created for a specific client, you should always carve out your pre-existing intellectual property — the frameworks, code libraries, design systems, methodologies, templates, tools, and know-how that you bring to every engagement.

Without a pre-existing IP carve-out, a broad assignment clause could be read to transfer rights in materials you created before the engagement started and use across all your clients. That outcome would be commercially catastrophic for a freelancer who has spent years building reusable tools and systems.

The standard structure is: the freelancer assigns (or licences) all Project IP — the work created specifically for this client under this contract — while retaining all Pre-existing IP. The client receives a licence to use the Pre-existing IP to the extent incorporated into the deliverables, but only for the purposes of using those deliverables.

Moral rights — what they are and why clients want a waiver

Moral rights are personal rights that authors of copyright works have in relation to those works. They exist independently of copyright and survive even after copyright is assigned. The two moral rights most relevant to freelance work are:

The right to be identified (paternity right)

Section 77 of the CDPA 1988 gives authors of literary, dramatic, musical, and artistic works the right to be identified as the author whenever the work is published, performed, or exhibited commercially. The right must be asserted — it does not apply automatically. Assertion is typically done in a contract clause or by a statement on the work itself.

For freelancers, asserting the paternity right means clients must credit you when they use your work. This can be commercially valuable for portfolio purposes, but many clients prefer not to credit external contractors. Commercial freelance contracts usually include a waiver of the paternity right in exchange for portfolio and promotional use rights.

The right of integrity

Section 80 of the CDPA 1988 gives authors the right to object to derogatory treatment of their work — treatment that distorts or mutilates the work, or is otherwise prejudicial to the author's honour or reputation. The right applies even after assignment and even if the author is no longer credited.

For clients, the right of integrity creates a risk: if they modify a freelancer's work in a way the freelancer considers derogatory, the freelancer may have a claim even years after the engagement ended. Most commercial contracts therefore include an express waiver of the right of integrity. The waiver must be in writing.

Waiving moral rights

A moral rights waiver must be in writing and must be clear about which rights are being waived. A broad waiver — covering the paternity right, the right of integrity, and any other applicable moral rights — is standard in commercial freelance work where the client needs unrestricted ability to modify and use the deliverables. The waiver is irrevocable once given and applies even if the copyright later changes hands.

For consultancy and advisory work where the freelancer retains copyright and only licences the output, a moral rights waiver is less common and less necessary — the client does not own the work and cannot claim the right to modify it without the licence permitting it. The licence defines the permitted uses; the moral rights framework sits alongside it.

Chain of title — who owns what the subcontractors create

If you engage subcontractors, employees, or other contributors to create any part of the work you deliver to your client, you need to ensure that the IP in their contributions flows to you — and from you to the client — without any gaps.

A subcontractor who creates copyright work owns it by default under section 11(1), exactly as a freelancer does. If your client contract requires you to assign all Project IP to the client, but you have not obtained an assignment from your subcontractor, you cannot assign what you do not own. The result is a chain-of-title gap that the client may discover during a due diligence process — for example, on a company acquisition or an IP registration — with potentially serious consequences.

The fix is a chain-of-title clause in your subcontractor agreement: the subcontractor assigns all Project IP to you (or directly to the end client), procures moral rights waivers from any individual contributors, and provides copies of those documents on request. Bracton's Subcontractor Agreement includes this obligation as standard.

The implied licence — what the client gets without a contract

Where there is no written IP clause, courts may imply a licence from the circumstances of the commission. The implied licence is typically narrow: the client may use the work for the purpose for which it was commissioned, but no more.

The following uses are typically outside an implied licence:

What your contract should say

A well-drafted IP clause resolves all of the above questions at the outset, before any work is created. The key elements are:

Identify pre-existing IP and reserve it

Define Pre-existing IP clearly — all frameworks, methodologies, code, design systems, templates, tools, and know-how owned by the freelancer before or independently of the engagement. State that Pre-existing IP remains the freelancer's property and is not transferred by the contract.

Address Project IP — assign or licence

Decide whether the contract assigns Project IP to the client or licences it. If assigning, use present-and-future assignment language signed by the freelancer. If licensing, define the scope of the licence — exclusive or non-exclusive, perpetual or time-limited, worldwide or restricted, and the permitted uses. Neither assignment nor licensing is inherently better — the right choice depends on the commercial relationship and the nature of the work.

Licence Pre-existing IP to the extent incorporated

Where Pre-existing IP is incorporated into the deliverables, grant the client a licence to use it to the extent necessary to use those deliverables — but no broader. The client should not receive rights over your Pre-existing IP beyond what is needed for the specific engagement.

Include a moral rights waiver where appropriate

For work-for-hire assignments where the client needs unrestricted rights to use and modify the deliverables, include a moral rights waiver covering the paternity right and the right of integrity. For licence-based arrangements in advisory and consultancy work, consider whether a waiver is needed given the narrower permitted uses.

Add a chain-of-title obligation if using subcontractors

If you engage subcontractors or contributors, require them by contract to assign all IP in their contributions and waive moral rights before or as a condition of their engagement. Include a further-assurance obligation so you can obtain any additional documents needed to perfect title.

Condition the licence or assignment on payment

Where the client receives rights through an assignment or licence, consider making the full scope of those rights conditional on payment in full. An interim licence that permits the client to use work in progress pending payment, with full rights only vesting on completion of payment, preserves the freelancer's leverage on payment disputes without preventing the client from using the work during the engagement.