re: "Am I liable for the infringment as well?"
What do mean "as well"?
This is all on you.
Copyright isn't like a video game, where there is a specific set of rules that the computer keeps track of, and at the end there is a score.
Copyright IS NOT ENFORCED. Unless it is. And then the way it is enforced is through the courts. Or not. It could be enforced by threats. Or letters. Or honor.
If you sell shirts that infringe on somebody's copyright, nobody is going to do anything about it. Unless they do. If somebody does something about it, they are going after you. They don't care about some freelancer somewhere who does not have any money.
A court would not care either. "But your honor! The feelancers I hired..."
Court: "Yeah... No. We're not here to talk about them. We're here to talk about you. When we are done here, if you want to talk to an attorney about taking freelancers to court, you have that right."
It's your responsibility to ensure that it is legal if you are selling the item. (Technically, if you were sued for breach of copyright you may be able in turn sue the freelancer but in the real world that may not be productive. )
But it isn't just about whether or not you're sued. Even if no legal action is taken, many platforms will refuse to sell an item that may be breaching copyright. It needn't necessarily have to be proven.
> If so, how can I prevent that from happenening ?
Being explicit in your contract with the freelancer may help on a psychological level and reduce the chances of the freelancer doing it.
On a practical level, you can ask for the source of any images used. If it's a design from scratch, you can ask for some mode of proof of the process. A graphic designer would be able to specify precisely what form this should take.
On a very pragmatic level, you choose a designer who has a verified and verifiable good reputation.
Not meant to appy to everyone, but some real-world experience in this area:
I have commissioned a lot of artwork on Upwork.
Including artwork that I have had made into T-shirts.
I am not worried about copyright infringement because I personally wrote the descriptions of the artwork that I wanted created. These include a few sentences to describe images (http://tempeservicecorps.org/?p=gallery), or simple scripts that I wrote for short comic strips, which were illustrated by artists I hired (as seen in my portfolio).
I know the ideas and scripts don't infringe on anybody else's copyright, because they are my original ideas.
When I hired artists using hourly contracts, most of them created their illustrations using computers and software, and I can see their work diaries. Not always possible, I know that, but in these cases, I can see the artists actually sketching original artwork, doing breakdowns, doing more finished artwork, coloring, etc.
So, once again, I'm not worried that these images were copied from somewhere else. They're entirely original and I own the copyright to them. I can do anything I want with the artwork, without any worries about copyright.
Another thing clients can do is use Google image search to search for images that match the artwork freelancers submit to them.
"On a practical level, you can ask for the source of any images used. If it's a design from scratch, you can ask for some mode of proof of the process. A graphic designer would be able to specify precisely what form this should take.
On a very pragmatic level, you choose a designer who has a verified and verifiable good reputation."
Lukas - Kim gave good advice. But to expand on it further. Asking for proof of the process would not really solve/prove anything. It is easy enough to download artwork in it's original native file format and pass it off as original.
In most cases, artwork is offered free for personal use only. Some will specify that artwork can be used for commercial use, as long as it is not altered in any way or credit is given to the originator of the artwork, or you make a small donation to the artist. The biggest issues arise when it comes to selling this ready-to-grab artwork - it's a huge no-no.
It is important to vet freelancers carefully. The problem with that is that there are freelancers with great feedback from happy clients for the wonderful t-shirt they got. But unbeknownst to the client, they are not getting original artwork and don't know any better how to determine what they have.
One thing you can do is use Google's reverse image search when someone sends you mock-ups for feedback. And do make sure you ask for the native vector file (usually in Illustrator, sometimes Corel Draw). If someone grabs a jpeg or png, they most likely do not know how to redraw it as a vector image, so that can be a tell as well.
Finally, be willing to pay what it takes for a true talent to create original art, art that only you have the rights to and no one else has seen. Many t-shirt job posts are in the $5-$25 price range. Those clients get what they pay for and may find out the hard way that it's artwork they can't sell.
What does UPWORK do to ensure that original development that my company develops requirements for, designs, and tests and pays for, is not infringed on by members reusing this work for other clients?Does UPWORK have a contract with agencies and independents in place, before they can respond to jobs/platforms on the platform. This is our IP, not anyone elses.
I generally have NDA's and IP assignments in place, (which some have said they never had to sign believe it or not) but I REALLY want to know what UPWORK does and how it protects clients before they can respond to work. Where can I see what is in place?
Question: "What does UPWORK do to ensure that original development that my company develops requirements for, designs, and tests and pays for, is not infringed on by members reusing this work for other clients?"
Answer: Upwork is not an intellectual property management service.
Upwork freelancers are not here for the purpose of stealing the intellectual property from clients. Upwork freelancers are here to earn money by providing service to clients.
Question: "Does UPWORK have a contract with agencies and independents in place, before they can respond to jobs/platforms on the platform."
Answer: Not necessarily.
Upwork is a service that provides opportunities for clients to find freelancers.
Upworks contractual requirements of users are found here:
re: "This is our IP, not anyone elses."
That is 100% correct.
re: "I REALLY want to know what UPWORK does and how it protects clients before they can respond to work. Where can I see what is in place?"
Upwork does not provide intellectual property management services. You may be asking about something that does not exist.
You may wish to read this:
Which includes this useful section:
Ownership of Work Product and Intellectual Property
Upon Freelancer’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
Below are two different topics, which may be of interest to the same people, but which are not exactly the same thing:
a) How does Upwork ensure that clients own the intellectual property rights for the work they pay freelancers to create? (Answer: Upwork's default contract language specifies that ALL intellectual propery rghts belong to the client who pays for the work, as explained in the quote above.)
b) How does Upwork ensure that freelancers hired by clients do not inappropriately use any intellectual property that belongs to a client? (Answer: This is not what Upwork freelancers do. Except, of course, for rogue freelancers who do bad things. Upwork is not an intellectual property management service.)