Copyright Ownership In a Partial Project

jfdenault · ‎06-26-2018

Hi,

Going through a particular case of copyright ownership, and was looking for opinions.

I wrote a White Paper for a client. Payment was structured 50% up-front, 40% after first revision phase and 10% on final clean-up.

Up-front payment was made to start the project.

I handed in the first draft, and waited for feedback. There was some back and forth, and discussions about the person responsible for review being unreachable.

After 120+ days, the project was closed by error, and the escrow for the 50% remaining refunded to the client.

My question: Do I own the copyright on the first draft I wrote? Because right now, I did receive some funds, and the project is listed as complete on Upworks, but I certainly did not get paid the full agreed ammount.

Thanks

Jean-Francois

prestonhunter · ‎06-26-2018

I feel bad for you that you were not paid the amount of money you had planned on.

But as a practical matter... you can't do work and then let it sit for 120 days and expect to get paid.

Clearly doing that didn't work out here on Upwork. 4 months? It isn't a good idea anywhere.

On Upwork, unclaimed escrow funds ARE automatically refunded back to the client. A while back, Valeria wrote: "If a fixed-price contract is inactive for 90 days it will be auto-closed. 2 weeks before that, both the freelancer and the client receive notifications. The freelancer will have an option to dispute the refund according to the standard process."

prestonhunter · ‎06-26-2018

Jean-Francois:

I don't know all the details of what happened with your project.

But in all honesty?

I'm glad you got paid something.

Because it sounds like this is a project that fell through the cracks.

I think nobody over there actually cares about your paper any more. I don't think anybody is using it.

This is what I would do if I were you. I would send a message to the client, using Upwork messenger tool:

"Ned, thank you again for the opportunity to work on this project. I would like to retain ownership and copyright of the paper and post it in my portfolio. If that is okay with you, there is no need to respond. If you don't want me to do that, then just let me know what you would prefer and then go ahead and pay the remaining balance of $X.00."

I would then wait 24 hours. At the end of 24 hours, if the balance has not been paid, then I would consider the matter closed and do whatever I want with my white paper.

[ETA: No. Don't do this. See below.]

petra_r · ‎06-26-2018

@Preston H wrote:

I would then wait 24 hours. At the end of 24 hours, if the balance has not been paid, then I would consider the matter closed and do whatever I want with my white paper.

Surely you mean " At the end of 24 hours, if the balance has not been paid, AND AFTER REFUNDING WHAT HAS ALREADY BEEN PAID (which is, unless I am mistaken, $ 1500) then I would consider the matter closed and do whatever I want with my white paper."

prestonhunter · ‎06-26-2018

Ugh... This thing is kind of a mess.

Petra is right about this...

To answer his question: No. The freelancer can't claim copyright on the first draft. Even though a big chunk of money was in escrow and was refunded back to the client.

When I looked back more carefully, I saw that the freelancer collected an up-front payment... which was NOT refunded...

So it looks like a lot of "expected" money was never paid for this work.

But a lot of money WAS paid and was never refunded. The freelancer STILL has that money.

Even if nobody is using the work, Upwork's standard contract is pretty clear: You can't claim copyright on something you WERE paid for.

...And the freelancer WAS paid for this work.

There is no way he is going to want to refund that money. So he needs to leave this alone. And NOT try to clain any kind of ownership over the writing.

jfdenault · ‎06-26-2018

Thank you both for weighting in your opinions.

I guess at this point, the only sensible thing for me to do is to accept that the money is gone.

There are a few things I wanted to add though:

First, it was mentionned that "On Upwork, unclaimed escrow funds ARE automatically refunded back to the client. A while back, Valeria wrote: "If a fixed-price contract is inactive for 90 days it will be auto-closed. 2 weeks before that, both the freelancer and the client receive notifications. The freelancer will have an option to dispute the refund according to the standard process.""

In this case

a. The project was not innactive, as communications (from both parties) were still ongoing

b. No 2 weeks warning were given before being closed

c. The project was closed by UpWork: The person I that hired me was not with the company anymore, so UpWork closed all projects related to his account, including mine.

d. I have not been given any option to dispute the refund.

Second thing, so I understand correctly, is that this White Paper is now stuck in perpetual limbo? The Client cannot use it because he has not paid it in full (and hence does not own it), and I cannot use it because I was partially paid for it? Because the Upwork contract is pretty clear: Copyright ownership changes hands once the final payment has been made.

bobafett999 · ‎06-26-2018

I am not a lawyer, but I have seen standard contracts in which stuff is clearly spelled out that unless the contractor is paid in full, the contractor retains the copyright.

I am glad that you made them pay 50% upfront - that is the normal way of doing things in real life.

rverang · ‎06-27-2018

@Jean-Francois D wrote:

a. The project was not innactive, as communications (from both parties) were still ongoing

In this case, activity means any amount in escrow being released.