Legal Guide for Copywriters, Content Writers and Freelance Writers

Last updated: 7 February 2018

Legal Guide for Copywriters, Content Writers and Freelance Writers – This comprehensive guide outlines everything you need to know from an Australian legal standpoint about writing content and starting a content writing business. We cover:

• Ownership of articles, copy and content
• Your responsibility to write accurate content
• Using Copywriting Agreements with your clients, and
• Selling your copywriting and content writing services

Whether you’re a sales copy writer or website article writer, doing things right will help avoid legal issues and protect you and your business from lawsuits.

Legal issues covered in this guide

Click on any of the questions below to jump to that section of this legal guide.

• Who owns the content once it is written?
• Can my clients put their name on articles or copy I wrote for them?
• Can I re-post sample articles written for my clients on my own website?
• Can I sell the article or copy again to another client?
• What should I do if my work for a client is copied or plagiarised?
• Can I sub-contract out a writing assignment to another freelancer?
• Am I responsible for the accuracy of any claims made in my content or copy?
• What supporting documentation do I need to keep to substantiate the accuracy of any claims made?
• Can I be held personally liable for my copy?
• How can I avoid being held personally liable for my copy or any changes made to it?
• Can I use testimonials and endorsements in my copy?
• Can I mention competitors or competing brands in my copy?
• Can I use images from the Internet to illustrate my articles or content?
• Should I get my clients to sign a Copywriting Agreement?
• What clauses should my Copywriting Agreement include?
• Should my website include my copywriting terms and conditions?
• What business structure should I use for my content writing business?
• Should I trademark my copywriting business name?
• Should I register my content writing business for GST?
• What legal agreements or notices should I use in my copywriting business?

If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.

Who owns the content once it is written?

Normally, your client will want to own the written content once they have made payment. This can be clarified in your Terms & Conditions, whether you retain ownership as creator or the client owns the content on payment. What you must do is make it very clear who has ownership in the terms of your Agreement.

Can my clients put their name on articles or copy I wrote for them?

This depends on the terms of the Agreement you have with your client.

If you have given them full ownership of the content, then they are free to post the material under their name and represent it as their own work. The terms you have agreed with your client need to clearly state any restrictions on using or publishing your work. This includes any restrictions on attribution, commercial use, distribution, etc.

Can I re-post sample articles written for my clients on my own website?

Again, this depends on the terms of the Agreement you have with your client.

If your terms state that your client has full ownership of the material once payment has been made, then you must get their permission to republish the material on your website – even if you’re just using it for promotional purposes. We recommend that your Copywriting Agreement includes a ‘Display Rights’ clause that allows you to re-post your work in your own online portfolio.

Can I sell the article or copy again to another client?

Normally, no. But again, this depends on the terms of the Agreement you have with your client.

If you have not given your client full licensing ownership rights to content and provided your client terms do not state otherwise, then you may be free to on-sell your original work or even a modified version.

What should I do if my work for a client is copied or plagiarised?

If you see your work copied without your permission, you should check with your client to see if they have given their permission. If no permission has been given, then the publisher may be in breach of Copyright. The owner of the content should then send a Copyright Infringement Notice to the publisher demanding the unauthorised material be taken down and requesting compensation, where applicable.

Can I sub-contract out a writing assignment to another freelancer?

Good question! When selling your services, it is important to be transparent with your clients that you may use employees or qualified contractors to assist with delivering work.

You should also have agreements with your employees and contractors, clearly stating the ownership and use of their work. You don’t want to be caught out by a contractor re-selling work they created for your client to another client!

Am I responsible for the accuracy of any claims made in my content or copy?

Yes, you are responsible for ensuring your work is accurate and not misleading. You should research your topic and claims to verify the accuracy of your content. You cannot make untrue statements or deceptive promises, offer false guarantees or advice.

If you are writing advertising copy or website content, ensure you have clear instructions from your client and accurate descriptions of the goods and services being sold. Make sure these instructions and descriptions are in writing and keep copies of them just in case any claim is made. When you finalise the wording, have your client sign-off that they have read the content and agree all descriptions and language used is accurate.

You cannot control how some website visitors may read and rely on your written content, so you should make sure that your client’s website has the appropriate legal disclaimers. And if an issue does arise, don’t ignore it. Move quickly to address any complaints and resolve them rapidly.

What supporting documentation do I need to keep to substantiate the accuracy of any claims made?

You should always keep a copy of:

• Original client quote
• Copywriting Agreement (signed by your client)
• Any instructions or relevant emails from your client
• Notes, research documents and references used
• Final version of your work

Can I be held personally liable for my copy?

Yes, you can. Depending on the issue, you may be liable for errors, negligence and false, misleading or even defamatory statements.

To mitigate this, you need to have a signed Copywriting Agreement with your client that includes a ‘Limitation of Liability’ clause. In the event a claim is made against you, this clause should limit your financial downside. In addition, you should have clear, written instructions from your client, approval of final wording used and documentation of any claims made.

How can I avoid being held personally liable for my copy or any changes made to it?

What happens if my client changes the material I wrote for them and is subsequently sued for defamation or misleading advertising? Your Copywriting Agreement with your client should include a ‘No Liability’ clause. This provides protection for you when changes are made to your material without your consent or knowledge, or if the material is misused.

Can I use testimonials and endorsements in my copy?

Yes, as long as you have written approval from the customer you can use unedited testimonials.

Can I mention competitors or competing brands in my copy?

It is not good form to mention competitors or competing brands. Any claims you make about competitors will be thoroughly scrutinised by those competitors and you’ll need to have strong evidence to substantiate them. You might also start a “tit-for-tat” war of words that no one will end up winning.

Can I use images from the Internet to illustrate my articles or content?

If you include images with your articles or content, make sure:

• Images are ‘Royalty Free’
• Images are available under a Creative Commons license, or
• Your client owns the rights to use the images

If you are purchasing images on your client’s behalf, make sure that the rights you are purchasing are either transferrable to your client or that you purchase the licensing rights in your client’s name. Otherwise you may find that your client does not have the right to use the image if it has only been purchased by and licensed to you.

Should I get my clients to sign a Copywriting Agreement?

Yes, absolutely.

For your own protection, your client needs to acknowledge the terms of the agreement. If you provide a quote or proposal, make sure it is subject to your full Copywriting Agreement and reference this Agreement in your quote. Your client can agree to your Copywriting Agreement by:

• Using an eSignature service
• Signing, then scanning/photographing and sending my email
• Acknowledging agreement by email, or
• Tickbox to your Agreement on checkout

Each of these methods offer different levels of protection, but if you have no proof of agreement, your terms may be invalid and void.

What clauses should my Copywriting Agreement include?

Your Copywriting Agreement should include:

• Ownership of content and copy you produce
• Any restrictions on attribution, commercial use, distribution, illegal use, etc.
• Indemnity protection for use of your material that you cannot control
• ‘Display Rights’ clause that allows you to re-post your work in your own online portfolio and for promoting your services
• ‘Limitation of Liability’ clause that limits your financial downside if sued
• ‘No Liability’ clause if your work is modified or misused
• Confidentiality of any business sensitive information you receive from your client, etc.

Should my website include my copywriting terms and conditions?

Yes, absolutely. Consumer Law requires that eCommerce businesses post their terms, which includes a Privacy statement. You need to make sure your terms are clearly laid out and understood by your clients.

What business structure should I use for my content writing business?

In Australia, there are generally 4 options for structuring your content writing business:

• Sole trader
• Pty Ltd Company
• Partnership, and
• Trust

The best business structure for you will depend on your personal circumstances – and getting this decision right is very important. So talk to your accountant about the pros and cons of each option. Here’s a quick summary of each option.

Being a Sole Trader is the simplest and least expensive option. Designed for business owners who are the sole proprietors of their companies, this structure doesn’t give you much protection if things go wrong. Your personal assets are unprotected from any claims arising from your business.

Incorporation (i.e. forming a Proprietary Limited Company) effectively makes your business a separate legal entity from you. This structure involves quite a bit of paperwork and can be more expensive to maintain but it offers your personal assets protection from liability. Only your company assets are at risk in the event of any legal actions and company debts.

Creating a Partnership allows you to go into business with multiple people and share income. Partnerships are easier and less expensive than Companies to set up. However, all partners together are personally responsible for business debts and actions against the Partnership. And each partner is individually liable for debts incurred by the other partners. This means you have unlimited liability, unlike a Company structure.

A Trust isn’t an organisation at all, but instead a legal structure to hold assets. For example, you might set up a Trust to hold your business assets, then appoint a Trustee to manage them. Commonly, the Trustee is a Company and the Trust provides asset protection and limits liability from operating the business. Trusts are very flexible for tax purposes. However, a Trust is a complex legal structure and establishing a Trust costs significantly more than a Sole Trader or Partnership.

For more detailed information on each of these business structures, see our feature article: How to Choose the Right Business Structure in Australia.

Should I trademark my copywriting business name?

Just because you set up a Pty Ltd company or registered your business name with ASIC, this does not protect your brand name. Any business can use your brand name. The only way to protect your brand name and restrict its use, is to register it as a trademark with IP Australia.

This concept is one of the most misunderstood aspects of starting or running a business. And business owners frequently contact us because someone has started using their brand name – which they thought they owned!

Should I register my content writing business for GST?

If your content writing business has annual revenues of over $75,000 then you must register for GST. If you have annual revenues of less than $75,000 then talk to your accountant about your options.

What legal agreements or notices should I use in my copywriting business?

Here are the legal agreements and notices that we recommend you use in your copywriting business:

• Copywriting Agreement: This clarifies the details of your copywriting and content writing services. It is important that the Agreement includes Disclaimer, Limitation of Liability and Display Rights clauses.
• Quote Terms: These ensure your quote is governed by your Copywriting Agreement once your client agrees to go ahead. It also includes terms to ensure variations, after the quote has been agreed, may be subject to additional fees.
• Privacy Policy, Disclaimer and Terms & Conditions: These are the standard legal notices that all websites should have posted.

Using these legal agreements and notices in your copywriting business will show you’re a professional operator. Plus, as we said at the beginning of this guide, doing things right will help avoid legal issues and protect you and your business from lawsuits.

We hope you found this legal guide about writing content and running a content writing business helpful.