Dear Upwork Community,
I worked with a freelancer on Upwork to illustrate my children's picture book. I am very happy with the result and we worked very well together. Now in the very end we have an argument about the copyright of the illustrations. The illustrator wants the copyright and a (c) for the illustrations in his name in the book. His motivation is that he wants to be named as the creator of the pictures, but not selling them on or parts of the royalties. I want all rights like deciding how the illustrations will be used, the royalties of the book, decision about any follow-on products etc. I don't mind naming him as the illustrator.
Now the question is if he is included with a (c) in the book as the holder of the copyright of the illustrations, what does that mean? Is that just his right of being named as the illustrator, or would that give him more rights like selling the illustration to someone else, claiming any royalties, etc.?
I understand that the standard Upwork contract transfers the copyright to me as the client, but I don't want too much of an argument with the freelancer given that we worked really well together. If a (c) in his name just means that I have to name him as an illustator that would be fine for me. But if it means he has all the rights to the illustrations, I cannot include the (c) in his name. Can anyone explain how to best make sure that he has the right to be named, and I have all other rights to use the illustrations as I please?
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Emily N wrote:
The illustrator wants the copyright and a © for the illustrations in his name in the book. His motivation is that he wants to be named as the creator of the pictures, but not selling them on or parts of the royalties. I want all rights like deciding how the illustrations will be used, the royalties of the book, decision about any follow-on products etc. I don't mind naming him as the illustrator.
As far as Upwork are concerned, and in absence of any prior agreement to the contrary between you and the freelancer, all rights pass to you as soon as payment has been made.
If you want to name your freelancer as the illustrator, you may obviously do so. Whether that gives him any rights is something you would have to check with a legal professional.
From my understanding (having taken legal advice years ago regarding a similar situation) you can credit him as illustrator (as I did a photographer and an artist for cover art for a book) but have them sign an agreement regarding all further rights.
I would personally NOT put the © against his name.
I'd use "illustrations by Name" rather than "illustrations © Name"
You can also point him to 6.4 of this part of the ToS
Ultimately, in absence of any prior agreement to the contrary, that is valid, so you agreeing to credit him is a nice gesture on your part, no more, but do take legal advice if in doubt.
I am not a legal professional.
On upwork, in absence of any other agreement between freelancer and client, all rights pass to clients on making the payment.
You can ofcourse acknowledge the illustrator. but you do not have to if you do not want.
I would personally not use that copyright symbol. In usual Practice that symbol represents copyright/ copyright claim.I would not want the freelancer to go to a court and claim :
"That as a result of an agreement reached with party, he owns the illustration. And client had in past acknowledged his right by getting it published on the book as "illustation (c) whoever".
May be the case would not stand in absence of written agreement and get summarily dismissed but who wants a trouble of any degree for nothing.
If at all you like to acknowledge their efforsts 'Illustration Done by their name ' should be sufficient.
I'm sorry to hear that this issue even came up.
Upwork's default policies regarding intellectual property are clear. The client who pays for work is the one who owns all rights to the work. It's stated right in the ToS.
As a client, I have hired dozens of artists and illustrators on Upwork. I can't think of a single instance in which any of them asked for anything other than to be paid the agreed-upon amount. I own the copyright to the work that they produced.
Based on my experience, and based on what I have read in the Forum, I believe that the overwhelming majority of artists and illustrators working on Upwork understand its policies about who owns the rights to commissioned work.
Emily N wrote:
Can anyone explain how to best make sure that he has the right to be named, and I have all other rights to use the illustrations as I please?
The right to be named and the right to preserve the integrity of his work from "any alteration, distortion, or mutilation of the work that is prejudicial to the author's honor or reputation" falls under the Moral rights of an author. In most countries these rights can't be transferred and they remain with the author until his death. Moral rights and economic rights (or copyright) are two different things and they're meant to coexist. If the freelancer you have worked with is only concerned about protecting his work from potential malicious alterations (surely not by you directly, knowing that you have mantained a great relationship from the beggining), you can offer him to sign an agreement with a clause regarding moral rights.
But as others have stated before, all copyright of the work was transferred to you from the moment you paid for it and according to Upwork policies. Because of this, it's not advisable to use the (c) symbol to credit the artist. Personally I would follow Petra's suggestion and use the word "by" instead.
In the real world, Illustrators always retain the copyrights to their work, unless that work was done in an employee/employer setting. (Disney, is an example) It is actually unethical for an author, publisher or agent to ask to retain the copyright for an illustrator or artists' work without additinal payment. It is also very expensive to buyout the cost of copyright transfer from the ilustrator as it can be anywhere between 3-100 times the cost of the total project.
That being said, this is Upwork, a Work for Hire portal and the TOS determines the legalities of copyright transfer to the client upon payment. You should definitely give the illustrator an acknowledgement on the cover at the very least but by no means put the copyright symbol next to their name on the copyright page or anywhere else. That in itself would suggest that you let them retain the copyrights to the illustrations.
I have illustrated many chldren's books for Upwork clients and I know that the client will own the copyright in the end. To protect myself, I have the client sign a rights release agreement that states that they will own the copyright upon full payment, that I must be named as the illustrator on the cover, copyright page and title page. I also reserve the right to showcase the work in my portfolio, social media, and any other means for the sole purpose of promoting myself and my business. I would never resell that client's copyrighted work, that is also in the agreement. The client knows if I promote their children's book on my social media, their audience is expanded. I have never had a client complain or question this agreement. Perhaps your illustrator is worried that you will not let them showcase the work. If that's the case, a usage rights agreement should have been brought up by the illustrator before the contract started. Otherwise, you own the copyright and are free to do with the work as you wish.
re: "...his is Upwork, a Work for Hire portal and the TOS determines the legalities of copyright transfer to the client upon payment."
I appreciate your understanding of these issues, and your explanation of how you have thoughtfully carved out a place for yourself on Upwork, working within the rules in a way that is fair and transparent to the clients you work with.
I think where we run into problems sometimes is when people come to Upwork with certain experiences, and they expect things to be exactly the same here as they were in their previous experiences. Which is not necessarily the case.
Sometimes people in specific niches, such as illustration and writing, forget that Upwork is a broad platform which features freelancers from many categories, and it doesn't carve out exceptions throughout its ToS for each category.
@Tiffany I completely agree!
@Preston, I understand your point completely about clients beng used to past experiences. I only ask for the recognition and permission to show off my work, not the copyright to it. I only do the agreements beforehand for children's books. For other illustration and graphic design work, I just ask the client if they mind if I put the work in my portfolio or on social media.
Roslen M wrote:
That being said, this is Upwork, a Work for Hire portal and the TOS determines the legalities of copyright transfer to the client upon payment.
This may not be entirely true. In the U.S., work-for-hire is only permitted in certain specific circumstances. Many Upwork projects that by TOS fall under the work-for-hire provision appear not to be eligible for work-for-hire status. And, it's unclear whether the Upwork contract satisfies the requirements of a work-for-hire agreement, since the U.S. Copyright office specifically says a written agreement signed by both parties is required (there may be case law interpreting this to include digital agreements, but that is not stated in the official overview)