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Freelancer wants to post Design work on behance profile

Community Guru
Ela K Member Since: Feb 9, 2015
11 of 14

@Bojana D wrote:

...

 

3) Not exactly relevant to this particular discussion but does anyone with more legal knowledge know how the ToS work with the Berne Convention? Particularly this paragraph of the ToS: 

 

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.

 

when according to the Berne Convention the right to be identified as the author of the work is non-transferrable? 


 

Even though the US work-for-hire doctrine is actually at odds with the Berne Convention, US Congress has declared the US to be compliant with the specific section of the Convention that defines moral (personality) rights regarding authorship. 

 

Also, the Berne Convention is not self-executing in the US, who took a long time to sign it in the first place because of the implications it could have had. The US didn't and doesn't want authorship to be non-transferable.

 

Well, Congress decided it's all fine and dandy - hence, the work-for-hire doctrine is OK.

 

And since the TOS only reflect the work-for-hire doctrine ... it's all above board. Unfortunately.

 

 

Edited to add: Unfortunately, the Convention doesn't define "author", so there is room for (national law) interpretation!

Community Guru
Wendy C Member Since: Aug 24, 2015
12 of 14

Ela, thank you for shedding some intelligent light on this -

Community Guru
Jacqueline P Member Since: Dec 28, 2015
13 of 14

Seems to me timing is the key. If a freelancer makes public work on a product before release, that would give competitors and imitators an edge. Once the product is launched, it will be out there anyway and at that point it becomes a form of promotion for the product. 

 

What about Upwork's own portfolio section? Don't they encourage us to show our work there? At the completion of one project I got an email prompting me to add it to my portfolio, asking the client for permission first. The next time, no such email.  

 

I'm really grateful for the information in this thread. I would not show my work publicly in a case like this, but when my work promotes something and increased exposure to the product would help the client, I might. At least I would have before reading these posts.

 

I'm a graphic designer, so maybe that is different as my work is usually more about presentation than pivotal to the development of a product itself. I thought designers were fairly free to claim authorship of that aspect of a project unless requested not to. 

Community Guru
Wendy C Member Since: Aug 24, 2015
14 of 14

No matter what Upwork prompts a provider to add to his/her portfolio always ask client permission first.  Other than in cases where a NDA was in play because the client product/service was not yet on the market I've never has a client say "no". 

 

And when I knew the product had not launched - I never asked until after the launch and was then told "of course".

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