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Copyright and content ownership

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Active Member
Fabian C Member Since: Aug 18, 2015
21 of 45

Hi there Smiley Happy I'm "new" here, I resume my services here after 5 years, I'm impressed by that, I mean, why? Paying for a job doesn't make the client the author of the design, it doesn't make sense and it doesn't seem ethical to me. Why not give the designer the right to say "I did this" (just that) and also allow them the right to add the design to their portfolios? There must be some legal way to attribute those rights to designers without affecting clients' business, profits and interests. Smiley Sad It is really disappointing to me.

Is it possible to create an initiative for Upwork to make a modification to its clauses? that is, how chaotic can it be to modify a regulation to give designers that simple natural right? and specify that those designers will have no rights to future earnings and interest of any kind on the design sold.

Please excuse me if I am being ignorant, but I cannot just ignore the matter, and I am not a lawyer, so I have no knowledge in the matter.

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Will M Member Since: Oct 26, 2019
22 of 45

The very thing you mention, if I read correctly, is a right to all
creators. Whether they are a designer, illustrator, artist, musician,
writer, etc. UpWork should acknowledge this! It’s unfortunate they don’t,
however what they can’t control is how you do business with your clients.
That is with an agreement that outlines and states usage rights AND always
requires a credit line of some sort and allow to be used in your portfolio.

UpWork is not on the side of the creative freelancer, let alone custom
valued creatives! And shamelessly entice novices who know nothing about
real world business. They side heavily on the “client” side to gain profit.
And aren’t interested in value services and working relationships.

Of course not all freelancers on UpWork are in the creative industry, nor
all from the United States, which laws are in place to protect the Original
creator (as long as they didn’t cross any copyright).

Anyway, I might have said more than what your where initially asking about.
But I wanted to emphasize the reason behind my agreement to your post.

**Edited for Community Guidelines**

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Community Guru
Claudia Z Member Since: Jul 28, 2015
23 of 45

The Work Product represents the final deliverable or outcome. You need to have a clear agreement about what it constitutes a final deliverable. Specify from the beginning if you want to be sent also the source files, to have ownership over everything that it has been produced. Some designers are reticent to provide all source files, unless agreed prior to being hired, this happens mostly if the job is fixed price. One of the reasons not be provided all source files is because they want to retain ownership over some elements or they don't have full ownership over all elements incorporated in the final design.

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Community Guru
Preston H Member Since: Nov 24, 2014
24 of 45

Remember: In an hourly contract, all work produced by the freelancer while working on behalf of the client (while being paid by the client) belongs to the client. Automatically.

 

This includes all intermediate files produced by the freelancer. All of these file constitute work product.

 

If a freelancer creates a great design file in Photoshop, and as part of creating that file the freelancer created 5 Adobe Illustrator files... all of these constitute work product. All of these belong automatically to the client.

 

These files, created while working for the client, are never the freelancer's files, and it is not up to the freelancer to decide whether or not to provide these files to the client. They already belong to the client.

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Community Guru
Wendy C Member Since: Aug 24, 2015
25 of 45

Adding to the comments above -

 

Freelancers normally reserve the right to showcase work they are proud of in their portfolios - this includes websites. The smarter ones include this in their profiles and in any 'paperwork' between client and freelancer.

 

For clients with a NDA in force as it applies to website writers, designers (design, art, and graphics) and IT builds: once a site goes live it is considered public domain and the freelancer can showcase it in a portfolio, on websites, etc.

 

Ghost writers and, in some cases, editors are different - esp. as a ghost writer. The actual creator of the project can not, without specific permission, share the work as an example.

 

If you are asking solely about a Business Plan, it is best to lay out the exact terms in advance.

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Active Member
AMANY K Member Since: Apr 28, 2018
26 of 45

Dear Upwork community, I'm new to Upwork, but I have a long history as an architect & designer, and I was concerned about copyright and content ownership as I'm trying to build-up my own brand that is already there. From what you say here is, as long as I get paid I don't own the design anymore, it's is similar to as if I work within a firm.

But you say here that I still can put my design with my name on it in my portfolio & website, right? Is this written anywhere in the terms & contitions of Upwork? Can I do that legally on Upwork?

 

Thanks

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Community Guru
Nichola L Member Since: Mar 13, 2015
27 of 45

Although it is true that a client owns the work once you have been paid for it, you could possibly come to some sort of agreement with each client, in  that although they own the work, they might not mind naming you as the creator (not the owner) of it. In which case, they probably wouldn't mind your using it as a portfolio piece - but always ask first as some clients do mind. In effect, copyright is when you agree (or grant) full ownership of the work to the person who has paid you, who can then do what they want with the work, without further input or claim from you.

 

An agreement of this sort doesn't work for all clients of course, as some wish to claim authorship as well as ownership. 

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Active Member
John M Member Since: Mar 11, 2019
28 of 45

Would you be able to describe how this transfer of ownership differs in a fixed price contract? i.e. - are demos/roughs sent to a client (but are not accepted as the final product) also included in transfer of ownership? Or is it only the work product that is deemed to fulfill the job posting requirement?

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Community Guru
Preston H Member Since: Nov 24, 2014
29 of 45

re: "Would you be able to describe how this transfer of ownership differs in a fixed price contract? i.e. - are demos/roughs sent to a client (but are not accepted as the final product) also included in transfer of ownership? Or is it only the work product that is deemed to fulfill the job posting requirement?"

 

John:

Technically speaking, a fixed-price contract is intended to specify a specific task or deliverable. Each fixed-price milestone should be accompanied by a description of what the freelancer will do and deliver.

 

So technically, NOTHING that is not specified as a deliverable needs to be delivered to the client. You can be nice, as a freelancer, and deliver all kinds of stuff. But the client doesn't have a right to anything outside of what was agreed-to beforehand.


For example, if you have a milestone that says: deliver a mock-up sketch for a book cover, then that's the only thing you need to deliver for that milestone.

 

The client could say: "Didn't you take a bunch of hand-written notes during our conversation about what the book cover should look like?"

 

Freelancer: "Yes."


Client: "Can I have those notes?"

 

Freelancer: "The deliverable was the sketch, not any notes."

 

Now... the freelancer COULD be nice and scan the notes and send them as well. But he doesn't have to.

 

If this was an hourly contract, however, then those notes BELONG TO THE CLIENT. If the freelancer took notes while logging time (or added time manually), then the freelancer wouldn't have the right to refuse providing those notes to the client.

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Active Member
John M Member Since: Mar 11, 2019
30 of 45

Thanks for the detailed answer - It confirmed what I had believed to be true, but I wanted to get a second opinion on what I had surmised. Thanks!

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