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odeskos
Member

Rights to completed work

A hypothetical case - the freelancer is dissatisfied with their rating and choose to issue a refund. Who retains rights of the work submitted, approved, and paid for, prior to the freelancer issuing a refund.

 

Upwork doesn't seem to know.

 

At least their "support" staff has no clear idea - different support representatives would give different answers.

 

Their Terms also don't specifically list this scenario - 8.6 Intellectual Property Rights: https://www.upwork.com/info/terms/

 

Section "Ownership of Work Product and Intellectual Property" states:

 

"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 the freelancer issues a refund after the "full payment" does this negate the "full payment" or once a "full payment" has been issued that's it and it doesn't matter what happens afterwards?

 

It's very worrisome that Upwork has no clear rules about what I believe to be a rather frequent case. I have received refunds from freelancers who were unsatisfied with their rating, but I'd rather use the subpar work they've provided because I have already invested time in it, than spending my precious time again on the same task.

22 REPLIES 22
prestonhunter
Member

John,

This is not unclear. This is not complicated.

 

If a contractor issues a full refund for work, it means the contractor was not paid anything for the work.

 

If the contractor was not paid anything for the work, then the contractor owns the full rights to the work that was done.

 

This is a matter of simple logic.

 

Please do not pester Upwork Customer Support with questions about this subject, or (really) with any general questions about the platform. Their primary useful function is to push buttons you don't have access to. They will not be an effective source of information on this topic.

 

If you have additional questions about this topic, please come here to the Community Forum to discuss.

I'm not sure how the system work here... does the client have to accept the refund, or can it be issued to them without them having to do anything, or even knowing about it until the money shows up?

 

 

"Welcome, humans. I'm ready for you!"
- Box, Logan's Run (1976)

re: "I'm not sure how the system work here... does the client have to accept the refund, or can it be issued to them without them having to do anything, or even knowing about it until the money shows up?"

 

Scott,

A contractor is able to issue a refund to a client without the client doing anything or knowing about it beforehand.

 

That is how the Upwork interface works.

 

Now, having said that, I should point out that if a contractor issued a full refund to a client without discussing it, this could very well confuse the client.

 

And this certainly doesn't guarantee that the client won't use the work.

 

So discuss these things politely with your client.

 

But, yes, to answer your basic, question, a contractor could issue a refund and the contractor would own the rights to the work.

 

It is unfortunately not as simple as that

 

Someone could do work for 200, see 6months later that it's been published or released or whatever,  refund for the hell of it or because it's become commercially valuable, and own it again?

 

I don't see that working out well

Yeah, that's kind of what I was getting at. Although I agree with Preston in theory, in practice there could be quite a few issues and angry clients. Once money has changed hands it shouldn't be that easy.

"Welcome, humans. I'm ready for you!"
- Box, Logan's Run (1976)

It's basic Copyright law, as well. 

 

A creator retains all rights to their work. It is their work from the moment of creation. Unless they sign a release and receive payment, and that is by their choice.

 

 

 

 

Now, let's just step back a bit and think about this logically...

 

Can two people physically use intellectual property even though only one of them owns the legal rights to it?

Yes, of course.

 

I'll make up a hypothetical example.

 

I hire "Jane Smith" to create a logo for me.

She does, and it's great. I love it. But she took two months longer than she said she would take to deliver it.

So I pay her, but I mark her down in my feedback a bit. She has a 4 star average from my feedback.

I put the logo on my website, and everybody loves it.

 

2 weeks later Jane's Job Score goes down and she thinks it is because of my score. She incorrectly thinks that issuing a refund will help her, so she issues a full refund for what I paid for her logo.

 

My feedback is wiped from her Profile Page. (My private feedback - an 8 - is NOT erradicated, and she probably takes a hit for issuing the full refund, but that is beside the point.)

 

So Jane has been paid nothing for the logo. Officially, if she wants to make a deal about it, she can claim that she owns the logo.

 

She never contacts me about it, though.

 

So am I using a logo I don't own the rights to? Maybe. I don't really care at this point. I think Jane's behavior is bizarre.

 

At some point Jane goes to an attorney and asks if she has the legal rights to the logo. The attorney says "Quite possibly... How much were you paid for it?"

 

Jane tells him "$40 dollars."

 

The attorney stares at Jane for a moment and says: "Well, okay... I'm really busy right now. Would you like a Danish? We have some in the break room. You can grab one on your way out."

Petra,

You are completely right about the situation not being so simple if time has gone by and somebody has already begun using your work.

 

I think our posts crossed, because the "complexity" you address in your post is alluded to in the hypothetical story about Jane refunding money for a logo delivered weeks prior.

 

I DO NOT KNOW the exact answer to this, but I will tell you somebody who does not know even more than you or I: Customer Service. So please, nobody ask them about this. You'll just make their heads spin and give some innocent $3.00/hour customer service rep a headache.

 

In all honestly, if you as a contractor feel the need to issue a refund to something you wrote a couple months ago, and it's already in use, then I'm sure Upwork would prefer that you just work out the details of ownership with the client. How is Upwork generating revenue and focusing on their core competency (don't make fun of the word) if you ask them to get into the middle of a dispute like that?


@Preston H wrote:

Petra,

 

 

1) I think our posts crossed, because the "complexity" you address in your post is alluded to in the hypothetical story about Jane refunding money for a logo delivered weeks prior.

 

2) I DO NOT KNOW the exact answer to this, but I will tell you somebody who does not know even more than you or I: Customer Service. So please, nobody ask them about this.


 1) They did, and I greatly enjoyed yours,it was much funnier than mine.

 

2) I agree people should not frivolously bother CS with with hypothetical stuff that is potentially complex as hell, unless they do have an actual issue at that time.

 

However, we all know how complex the site is, and you can not expect every CS rep to know the answer to every possibly conceivable question. A lot of cases like the above there may not even be an answer until the situation happens in earnest, when the legal department may have to wade in.

 

I intensely dislike seeing CS reps being spoken about in disparaging terms because they do their level best with a constantly changing environment. They're not minions to be made a laughing stock of, they are real human beings, like you, like me. They get all sorts of stuff thrown at them, they get screamed at, sworn at, threatened, get called names, and get discussed like meat in the forums. They deserve better than that.

 

 I do however disagree that we should not ask them questions IF OR WHEN there really is an issue with something like this.

 

If the rep does not know they will escalate to a team lead or a senior team lead. They can speak to a manager and get an answer eventually.

 

Petra gets off soap-box.

Obviously I'm not 100% sure how accurate this is, but I'm going to go out on a limb and say that the rights do not revert to the freelancer if they refund the money. Unless they speak to the client beforehand and it's specifically agree that's what will happen. 

 

The contract is to deliver a logo and get paid $40 dollars for it once it's been provided. If that happens, then the contract is fulfilled and is complete. The client has checked a box saying that the freelancer has delivered what was agreed. 

 

At that point, if they freelancer refunds them $40 then they're essentially just giving them $40 out of the goodness of their hearts. I'm pretty sure there's no provision in the contract that the freelancer can get the rights back. 

"Welcome, humans. I'm ready for you!"
- Box, Logan's Run (1976)

Scott, what you say here makes a lot of sense.

 

It makes more sense than having a situation in which a contractor has the unlimited, endless right to reclaim the right to their creation.

 

Could Stan Lee and the heirs of Jack Kirby gain rights to the Avengers simply by refunding the $50 or however much was paid to the original creators of the Avengers back in the early 1960s? Obviously not.

Petra,

You provided a well-articulated defense of Customer Service workers.

 

I don't mean to belittle individual customer service representatives, although I can see how my condemnation of using customer support for certain purposes can be perceived as such.

Preston, you are misleading people and giving incorrect information. 

 

Have you a law degree or worked specicially in Copyright, Trademark and/or IP law? I'm guessing not. I have. 

 

Step back a lot. 

 

odeskos
Member

I don't mean to be rude, but Preston's answers are useless and only flooding the topic. There is a real problem with Upwork's terms that needs to be issued. Upwork should clearly state that once the full amoun of the agreed upon payment has been issued all rights are irrevocably transferred to the client, regardless of any refunds at a late point in time.

 

Again Preston - not to be rude, but to clarify the obvious - the terms currently state "receipt of full payment from Client" - it says receipt of payment not keeping of payment. It doesn't state for as long as the freelancer keeps the money, so I guess legally a refund would not affect the rights, but just because it's not clearly stated it should be specified, and as I could see from the theme here - some people do get confused.

 

Otherwise if  really lose rights, I would simply stop leaving anything but positive feedback, just because the freelancer may decided 2 months down the road they don't want a negative feedback and refund the money. Then I lose rights to work I'm already using. In fact I would just stop using Upwork altogether because I simply would not know when I can lose rights.

 

So PLEASE - an Upwork official - clarify this. Be very specific. State it in your Terms.

John, when the money were refunded, the rights to the work were reversed to the freelancer.

 

To get back the rights to the work you have to fill a dispute. Its time consuming but its supposed to protect from abusive practices.

 

Using the work without disputing or getting the freelancer written approval its like playing with fire because you never know if they dont come back later and play some other card.

odeskos
Member

Again, I would like an Upwork official representative to provide a clear answer.

 

If anyone has any way of reaching out to an Upwork official - please do so - that would be the only real help for this subject matter.

There's only two places with the correct information. 

 

Copyright: http://copyright.gov/title17/

 

Trademark: http://www.uspto.gov/

 

And IP law is entirely different: http://www.hg.org/intell.html

 

 

 

 

 

John: I seriously doubt anybody at Upwork wants to provide an official answer to your difficult questions.

 

You should think about this from their perspective...

 

What does Upwork want?

 

They want to make money by connecting freelancers with clients and collecting 10% of freelancer's earnings.

That is the heart of what they do.

They don't want ANY refunds and they don't want any disputes, because that is money out of their pockets.

 

How are they making money by answering your question?

 

All they would accomplish would be to give official approval to some client or dome contractor who wants to act like a jerk and "follow the rules" instead of doing the morally correct thing to do.

 

To make an official statement beyond what they have already stated on their website would be open up avenues for abuse, in my opinion. So you are currently left with what is on the website, along with Upwork's hope that most clients and contractors will simply treat each other respectfully and fairly without needing to cite a rule book or case law.

Cairenn, I appreciate your links, points and perspective.

 

You clearly have a healthy respect for the law. Whether or not you share my healthy cynicism about the law is something only you can say for sure.

 

The law is the law.

 

It is important. It should be considered. But ultimately the law is just stuff that some people somewhere made up. Things that were illegal last year are legal this year. And vice versa.

 

The law does not necessarily tell us what is right or wrong.

 

The law does not dictate Upwork policy.

 

Upwork can have policies that go beyond the law and which even contradict your own interpretation of the law.

 

Upwork can choose to have no policies at all on some matters, and allow people to follow the dictates of their conscience and their own interpretation of law and morality.

 

 

It's all very well being legally in the right. ENFORCING one's legal rights through the courts is something else altogether, especially across borders.

 

So even if a person is actually legally in the right, financing an international law suit, winning it, and then collecting any costs and damages from the other party is something else completely...

 

So lets say you WERE to own a few hundred Dollars worth of something, and the client was on the other side of the world, are you REALLY going to launch an international lawsuit and pay $ thousands to enforce your rights? Especially without any guarantee that you ever see a Cent even if you win? That would only make any practical sense in the tiniest percentage of cases.

kochubei_valeria
Community Manager
Community Manager

Hi All,

 

I apologize for the time it took to obtain the response and post it here. 

Once a freelancer has been paid in full, ownership rights transfer to the client.  If the freelancer then issues a refund and the client accepts the refund, the ownership transfers back to the freelancer.  If the client doesn't accept the refund by letting Upwork Customer Support know, then Upwork will return the funds to the freelancer and the client will retain the ownership rights. 

~ Valeria
Upwork

Thank you Valeria!