Commissioned but Not Conveyed: The Copyright Gap in Freelance Design Work

A business commissions a logo. The designer delivers three routes, the preferred option is refined, the invoice is settled, and the artwork arrives by email in every format the printer asked for. At that point most directors reasonably conclude that the mark now belongs to the company. Under UK copyright law, that conclusion is often mistaken, and the mistake tends to surface at the worst possible moment: during a rebrand, a sale of the business, a trade mark application, or a dispute with the very designer who created the work.

Payment is not a transfer of title

The governing statute is the Copyright, Designs and Patents Act 1988. Section 11 provides that the author of a work is its first owner of copyright. Where a work is made by an employee in the course of employment, the employer takes the right; but a freelancer or an agency is not an employee, however close the working relationship feels. A commission is a contract for services, and the default position is that the designer retains the copyright while the client receives the physical or digital deliverable.

It is worth being precise about what the client has actually bought in that scenario. They have bought the right to possess and use the files, subject to whatever terms can be spelled out of the correspondence, and they have bought nothing more. The right to reproduce, to adapt, to licence to third parties and to assign to a purchaser of the company remains elsewhere.

The implied licence, and why it is thin comfort

Where nothing is said, the courts will not usually leave a paying client with nothing. In Griggs v Evans the Court of Appeal upheld the existence of an implied licence in favour of a client who had commissioned photographs, reasoning that the parties must have intended the client to be able to use the images for the purpose for which they were commissioned. That is a sensible outcome, and it is also a narrow one.

An implied licence raises more questions than it answers. How long does it last? Does it extend to a new website, a subsidiary, an overseas franchisee or a packaging refresh? Can the client alter the artwork, or sublicense it to a manufacturer? Can it be transferred if the business is sold? None of these matters is settled by the implication itself, and a licence, unlike ownership, gives the client no standing to object if the designer reuses a similar treatment for a competitor in the same sector.

Section 90(3): the formality that decides the question

An assignment of copyright must be in writing and signed by or on behalf of the assignor. That requirement is found in section 90(3) and it is not a technicality to be tidied up later. An oral assurance, an exchange of messages, or a line in a proposal that says the client "will own the designs" may fall short of a valid assignment.

The practical answer is a short, express clause in the design contract, signed before work begins. It should identify the works, assign present and future copyright, and deal with the possibility that the designer has not yet created the asset at the point of signature. Section 91 permits the assignment of future copyright, but the wording must contemplate it. A workable provision reads along these lines:

The Supplier assigns to the Client, with full title guarantee, all copyright and all other intellectual property rights in the Deliverables, including by way of present assignment of future copyright, such rights to vest on creation. The Supplier waives all moral rights in the Deliverables.

Two further points deserve attention. First, the clause should require delivery of working files, not merely exported artwork, because the ability to edit a layered file is often what a business actually needs. Second, payment terms and the timing of vesting should be aligned. A clause making the assignment conditional on full payment is common and defensible, but it should be drafted so that the client knows precisely when the right passes.

Moral rights: the residue that survives the assignment

Even a clean assignment does not automatically deliver everything. The 1988 Act confers moral rights on the author, including the right to be identified, the right to object to derogatory treatment of the work, and the right not to have a work falsely attributed. These rights cannot be assigned, although they can be waived by written instrument.

The right of identification must be asserted to be enforceable, which is why many contracts contain an assertion clause; the right to object to derogatory treatment arises without formality and can be engaged by cropping, recolouring or reworking a design in ways the original creator considers prejudicial to their reputation. For a business that intends to adapt its branding over time, a written waiver is the only sensible course.

The chain behind the signature

A small business rarely deals with a single individual. An agency may subcontract the illustration, license a typeface, incorporate a stock icon set, or use a generative tool for part of the process. Each of those links introduces a separate rights holder whose permission the client has not obtained.

Fonts are the classic illustration: a licence to use a typeface in a logo is not the same as a licence to embed it in a website or supply it to a printer, and the terms vary considerably between foundries. Stock imagery carries its own restrictions on print runs and merchandise. Where artificial intelligence has been used in generating an element, the copyright position is unsettled and may be thinner than the client assumes. The design contract should contain warranties that the supplier has secured all necessary rights and, ideally, an indemnity for third-party claims.

Copyright is only one strand

A brand is protected by a bundle of rights, not a single one. Copyright covers the artwork; design right may apply to three-dimensional articles; a registered trade mark at the UK Intellectual Property Office provides the strongest protection for the mark itself; and the law of passing off protects goodwill in an unregistered name. The assignment clause should therefore refer to all intellectual property rights, not copyright alone, and the client should consider registration independently of the designer's paperwork.

A checklist before the brief leaves the building

• Identify the supplier as an individual, a company or an agency, and confirm who will actually create the work.
• Include an express written assignment of present and future copyright and other IP rights, signed before work starts.
• Add a moral rights waiver covering identification and derogatory treatment.
• Require delivery of editable source files and confirm what those files contain.
• Obtain warranties on originality, third-party material, fonts and any AI-generated elements, with an indemnity where the risk justifies it.
• Record the licences attached to any stock assets supplied to the business.
• Keep the correspondence, the signed contract and the file versions together, so that ownership can be demonstrated years later.

None of this is onerous when it is done at the outset. It becomes considerably more expensive once the designer has moved on, the files cannot be located, and the business discovers that the logo it has spent five years building is licensed rather than owned. The time to settle the question of title is before the first sketch is drawn, not when a buyer's lawyers ask for a schedule of intellectual property.