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0048e18c
Community Member

Copyright and content ownership

Hello,

 

I'd appreciate any guidance to ensure both myself and my team use Upwork appropriately.  We're a small local business and have used Upwork successfully for a couple of small design items.  A great first experience.  However, I'm now considering hiring someone (and have actually posted the job) to help me conceptualize a brick and mortar business concept.  I'll need help in areas such as logo / identity as well as storefront design.  In short, I'm a busy business owner and do not want to make a mistep with ownership issues.  I obviously understand the payment part.  The client needs to pay.  But I want to make sure there's nothing more complicated than that.  Completely separate from Upwork, I learned a lesson in that regard when I bought a photo session for some friends who had just had a new baby.  I paid for the session and then they learned that every picture was a charge and their newborn was on the webpage of the photographer's site.  I respect people's work, but don't want to ever assume anything again, so any help here appreciated!  

67 REPLIES 67

I’m not sure if I read that response correctly, but, no the client doesn’t
own anything unless the creative exclusively said you do in the agreement.
This is to protect the creator of their hard earned work and not the
client.

However, UpWork and sites like them; sucker freelancers into the game to be
controlled by the buyers. This makes money for UpWork. It’s just a rat race
to the bottom unfortunately.

Again, still how the contract is agreed on in the beginning of the project.
Say for instance, in your example it’s a product designed to be sold, I
would probably do one of two things in the contract: charge a flat rate
that includes royalities % after so many sales or charge a much higher rate
and sell all usage rights to the client. An then there is also exclusive
rights, which still give the artist a say in the work or at least keep
credit. And in the case of illustrators, this still allows control over
their work and opportunities to make a better living from what they do.

At the same time, the designer/illustrator is also capable to go after the
infringer as well.

In terms of say logo design, it’s just not usual, worth it or makes a lot
of sense to not give all rights to the client. (That’s why unique custom
logo design is not a measly $$ amount like some seem to think on sites like
UpWork.)

The main point is; No it is not automatic and an all circumstances issue
that if ‘you buy it, you own all rights to it’ kind of deal. Make sense?

Will, I totally have been agreeing with you throughout the conversation in this thread. I'm just starting on Upwork as a 3D Modeler and Rendering Artist. I wanted to know is it ok to let people know on my profile that I would like to retain ownership of source files and the ability to use final images for marketing purposes? Just to honestly let people know up front. I'm not sure if people do this or not. Anyone feel free to chime in as well. 

I believe as the creator of the work, you very well should have full rights
to keep the working files.

That's what I thought as well. Do you think it's relevant to still address it on my profile in the summary? What about the marketing part of it relating to my social media and website?

Well, it’s mentioned in my agreement forms when working with clients. The
subject might be brought up in project discussions as to expected
deliverables.

Does that answer your question?
.
**edited for Community Guidelines**

Yes, it does! Thanks so much!

re: "I'm simply saying, this idea that the client should automatically own something because they paid for the work (in regards to creative) is NOT right nor correct."

 

We are not talking about an "abstract situation." We are discussing how things work on Upwork. Which are:

 

Unless a client and freelancer intentionally agree to an alternative contract which states othewise...

 

When a client hires a freelancer on Upwork with an hourly contract, then all rights belong to the paying client.

 

When a client hires a freelancer on Upwork using a fixed-price contract, then all rights to the specified deliverables belong to the paying client.

re : "Client do not automatically have the right to everything used in a project..."

 

um... okay. That has nothing to do with anything I said in my post. But, yes, what you have said here is factually correct.


One of the most clear examples of the fact that clients do not have the right to everything used in the project is a flier made with Adobe Illustrator.

 

The flier uses a distinctive font, which is not free but which must be purchased. The Adobe Illustrator file that the designer used to create the flier, as part of a standard Upwork hourly contract, belongs to the client. But the font itself does not belong to the client.

 

In order to provide excellent service to the client, the freelancer provided multiple versions of the file to the client: the original raw Illustrator file with editable text, a version of the Illustrator file in which text has been converted to vector graphic outlines, and a printable PDF version of the file.

 

Nothing that the freelancer does as part of this contract gives her the right to give away the font to whomever she chooses. But she provided a file that the client can use and continue to edit using that same font if he chooses to purchase the font for himself.

 

Furthermore, the application Adobe Illustrator was a vital thing used in the project, but the freelancer can't give that away, and the client may not expect the freelancer to provide that program as part of the Upwork contract.

 

The only things that the hourly Upwork contract requires the freelancer provide to the client are the files that are the work product produced while working on the contract. That would include any Adobe Illustrator files that were created. As part of being a good freelancer providing excellent customer service, the freelancer also converted the original Illustrator file to additional formats that the client would probably find useful.

I would have thought the final product was the "PDF" as a designer or whichever format the work was finalised in. 

re: "No it is not automatic and an all circumstances issue
that if ‘you buy it, you own all rights to it’ kind of deal. Make sense?"

 

You are correct.

 

It is not automatic in all circumstances.

 

Although the default contract entered into by Upwork freelancers when they agree to hourly contracts stipulates that all work product belongs to the client who pays for the work, Upwork allows clients and freelancers to agree to alternative contracts or agreements that override the default contract language provided by Upwork.

Yep. No argument there. This is true in Upworks legal terms, but also also
true that this part of the terms of being on UpWork is a bad deal for the
freelance creative field. Fortunately, agreements between client and
freelancer are allowed and should always be, but many freelancers don’t
realize this. In terms of U.S. copywrite law, it is not the case of all
rights to the buyer.

Will thank you for sharing your insight in this conversation.

I’m a recent grad who was let go during the pandemic (like a lot of people), so I joined Upwork thinking it’d be a great way to build my portfolio in between jobs. Now I’ve learned it’s “illegal” to include the work I created in my own portfolio…. This to me is wrong. I was under the impression that in the US I had all rights to work that I made, and maybe it was naive of me but I do feel taken advantage of by Upwork. All I can say is I’m glad I know now.

re: "Now I’ve learned it’s 'illegal' to include the work I created in my own portfolio.

 

It is not "illegal."

 

If you do work on Upwork for a client, then all you need to do is ask the client if you can include the item in your portfolio.

 

You can do that after you have completed a project.

ALSO, you are allowed to make an alternative agreement with your clients BEFORE you being a contract that states that you will have the right to include items in your portfolio.

 

Also:

If you create items on your own, you can include them in your Upwork portfolio. That's a great way to build your portfolio: you can include projects you created for class as a student. Or projects you create just so you can include them in your portfolio, to show your skills.


Claire R wrote:
Will thank you for sharing your insight in this conversation.

I’m a recent grad who was let go during the pandemic (like a lot of people), so I joined Upwork thinking it’d be a great way to build my portfolio in between jobs. Now I’ve learned it’s “illegal” to include the work I created in my own portfolio…. This to me is wrong. I was under the impression that in the US I had all rights to work that I made, and maybe it was naive of me but I do feel taken advantage of by Upwork. All I can say is I’m glad I know now.

Claire, surely they taught you in school that what rights you have to the work are contingent on the contracts you create and sign. Upwork's standard contract is very clear that this is work for hire and the client owns the work unless you create a contract that stipulates otherwise. I understand your frustration but to suggest that Upwork took advantage of you is pretty extreme. Either you read the contracts you signed or you didn't but either way it is your responsibility to make sure the terms are what you would agree to. 

 

In the future you can certainly set different terms with your Upwork clients regarding IP. There are freelancers here who do that. 

Actually, there is a good chance creatives like Claire, were not taught extensively or maybe even a little bit about contracts and business and usage rights pertaining to their profession. I get this question and concern all the time from recent grads and those who have found themselves freelancing for the first time.

However, with that said, the frustration and argument here is in the policies and legal described by UpWork leans more in favor of the hirer than the creative. And this ignorantly encourages unfair, and ignorant expectations from those who hire on this platform. Particularly in the U.S.

But I will say, yes…always use a contract and negotiate terms that work for both parties. Don’t assume.


Will M wrote:
Actually, there is a good chance creatives like Claire, were not taught extensively or maybe even a little bit about contracts and business and usage rights pertaining to their profession. I get this question and concern all the time from recent grads and those who have found themselves freelancing for the first time.

However, with that said, the frustration and argument here is in the policies and legal described by UpWork leans more in favor of the hirer than the creative. And this ignorantly encourages unfair, and ignorant expectations from those who hire on this platform. Particularly in the U.S.

But I will say, yes…always use a contract and negotiate terms that work for both parties. Don’t assume.

Score one again for training/degree programs who don't teach any of the business side (don't take it personally, I went through one as well). 

 

The takeaway, which is relevant to all things far and wide and doesn't take any education to know: Read the Terms and Conditions thoroughly of every contract, every site, etc. 

 

For the most part, most people aren't going to get highly burned not reading the TOS of a website, until you're exchanging goods/services on a website. To put myself in the hot seat, I signed up for an online course once, and it was awful, and I wanted to leave a review, and found that the TOS I signed had a nondisparagement clause - meaning anyone unhappy with the program could not publicly say anything about it. 

 

It reminds me of that South Park episode many years ago with the iPad and not reading the TOS, and by signing without reading, they agreed to become a human centipad. There's truth there. 

Yes. This is true.

That's why a number of years ago after reading UpWorks terms and policy, and learning the fact that they encourage "Work for Hire." I was very hesitant to do any work through UpWork. I found it far more efficient and worth while to the creative industry and one's career, not using UpWork.

Personally, I think work for hire is pretty awesome.

 

But as discussed:

If that's not your preference as a freelancer, Upwork allows you to make alternative arrangements with clients.

 

Will: I guess your point is that Upwork's culture is centered on "work for hire."

That's true. Not any way to get away from that.

 

As a client, I'm very pleased with how it works on Upwork. I commission a lot of artwork from Upwork artists. I have had zero IP or copyright issues.

It depends on what kind of creative work we're talking about here.

As a creative, knowing the value and how to value your work is key here. There is a cultural undervalue of creative with low offers notoriously cultured on UpWork and then add "work for hire" on top of that. Where as it would mean, the client/hirer of creative services gets all legal usage of all creative done for how ever they please. Which is an agreeable situation IF the freelancer takes that into account and values the work to a much higher fee accordingly. And I should add, that this is often the case in an agency and employee type situation. But, in most cases on UpWork, I don't agree that this should automatically be the case.

 

Of course not all work fits this. I understand that. Say for example, logo design. It makes much more sense that the client recieve all usage rights and the needed formats for reproduction and application to various touchpoints of the brand through its life. But, again, that should be taken into account on the fee as well.

 

When it comes to illustration. That's where the "work for hire" particularly is a bad bad deal for the illustrator. Or design, but all depending on how the contract and agreed scope of work related to a cost is negotiated.

chukwu-christian
Community Member

Hi

Just as every other responder has convinced you that paying for a project on Upwork makes you 100% the copyright owner. It's true!

 

However, I want to drop some comments as a writer. Your question was about some design and development work as Upwork would often term such projects.

 

This response is for freelancers and clients under WRITING and TRANSLATION.

 

  • Once you pay a freelancer to write a content for you, you are automatically the copyright owner. There are no two ways about that.
  • Freelancers are not supposed to use the work done for a client to create adverts elsewhere without the consent of the client. 
  • Freelancers who assist clients in editing and proofreading academic or some other scholastic works shouldn't put them up elsewhere
  • Freelancers should always UPHOLD CONFIDENTIALITY while doing their job

Most clients hire Talents on Upwork because they want to have some space and enjoy their time. While they are ready to pay, freelancers should ordinarily make the collaboration wpthwhile. 

 

Dont plegiarise and don't spill out.

Ha, there's an interesting thing then. 

 

So, a Client becomes the author of the work done. Thus, a Freelancer IS NOT allowed to post that work in his portfolio.

 

BUT, UpWork automatically displays the 'Jobs done' by a freelancer in his profile - which is effectively a portfolio.

 

So UpWork is breaking its own legal agreement?

re: “BUT, UpWork automatically displays the 'Jobs done' by a freelancer in his profile - which is effectively a portfolio.”

 

No.

The job history on a profile page is not a portfolio.

 

You may wish to study the meaning of the word “portfolio.”

 

Or look at various freelancers’ profile pages. Look at their portfolio. Look at their job history. Compare and contrast. Are they the same thing? Or are they something different?

 

re: “So UpWork is breaking its own legal agreement?”

 

No. It is not.

Edit - I thought I was replying to a different comment

No, that is not true. 

New comment:

It may apply to many projects but not all of them.

I will give you an example of where a freelancer would retain their rights to a design...  I am referring to copyright, not intellectual property rights.

I perform CAD design for the development of new products, repair equipment, tools, inudstrial equipment, consumer goods, etc.  When I am hired by a client, I am hired to perform a job and produce a deliverable.  A final product.

Lets say that I work for 40 hours designing a CAD model of a steel object.  The client would take this file to a manufacturer, machinist, or other entity to have the physical product made. 

I can also reverse engineer items for customers.  However, when reverse engineering items, the client is 100% responsible for obtaining the proper licensing to duplicate the product.  To simplify this concept, think about hiring someone to recreate a $20 bill.  It is perfectly legal to hire someone to draw a perfect reproduction of a $20 bill.  However, if a person (the client) were to make a physical reproduction from this image THEN TRY TO USE IT, there would be some very obvious problems.  This same idea applies in my line of work.  I frequently reverse engineer and duplicate items for the purposes of the client to modify.  What the client does with these items after they are purchased is their responsbility, not mine.  They are purchasing my interpretation of the item.

Unless other arrangements are made (spelled out in the contract), the client is only paying for the deliverable, not the process used to create it.  The deliverable only contains the elements that the client has ordered, nothing more, nothing less.

This is similar to what a photographer does.  How many photographers sell you a single picture so you can run and make photocopies instead of purchasing them?  Not too many.  Instead, photographers will sell you a dvd, thumbdrive or other medium with all of the images "released" so that you can make all the copies and edits you want.  This medium is also considerably more expensive than the standard photo packages available for purchase.  These are known as source files.

For my line of work, I typically charge anywhere from 150-200% of the total project price for all source files.  This is not a hard and fast rule however - I do make discretionary exceptions to this with smaller models and designs where I don't expect that any follow up work will result.  Unless the conversion fee is paid, I retain all copyrights to the source file designs (the creative process used to make the items).  This does NOT mean I am free to sell those designs.  Once I sell the deliverable to the client, it belongs to them.  Don't confuse the deliverable and the design process - these are not one and the same.  One is a final product while the other is a set of steps, tools, and processes used to create that deliverable. 

When you take your car to a technician for repair, you don't get to keep the tools.  Those would cost extra. You are simply paying for your car to be repaired and in a final state that reflects the agreed terms and expectations.

So no, copyright does not automatically convey to a client once the project is finished.  The conveyance of copyright depends exclusively on what is agreed to in the contract.  


Portfolio images/work/examples-
The best way to handle items to be used in a portfolio is for the freelancer to simply ask for permission. 

 

An NDA agreement should always be signed and agreed to by both parties, prior to any work that involves copyright.

 

This ensures total transparency between client and freelancer.

b8a9a230
Community Member

It is the LAW that when a photographer engages the shutter and takes a photo, they outright OWN copyright and charge the client licensing and usage fees to use those images as stated in a contract.  That means a photographer can use whatever images they take on their own website, portfolio, etc.  This work for hire practice is rampant on the internet and sites like this need to be SHUT DOWN.

2122ab05
Community Member

Hola! I'm having a trouble with the client over the copyrights. I submitted the source file (Adobe illustrator) for payment and the client was unresponsive for 10 days, later they replied that they didn't like some details and hired someone else to fix it. I mean, the client was not the owner at this point, so I understand they violated my rights as an author. Specially that client said, at the beginning of the project, that I would be acknowledged as the author in case he decide to sell the design. There was no Nda agreement. The client only paid for the sketches, so he can use that, but the client also thinks he is the owner of the design ( he provided a very basic layout), and that I "only" illustrated his concept. Even if that was true he is not authorised to use any of the vector elements that I created to illustrate this concept. Am I right?  I told him he have to pay me the all remaining milestone to be the owner, he wanted to pay me less, and now we have an open dispute over the money. I will surely charge more for the illustration works on Upwork, as I had no idea the client can ban me from adding the work to my portfolio. I'm in Europe so maybe here is different but being left with no copyright or moral rights to your work is a bit shocking to me. And contradictory. If the client can modify the work I did, why being acknowledged as the author? 
anyways, I learned to be very careful  about copyright agreement before  starting the work  from this experience.

crart
Community Member

This is an old thread but still valid. There is a good article here https://www.owe.com/resources/legalities/4-what-is-work-made-for-hire/ (attention mods: do not overact please, this is knowledge you may want to gain yourself).

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