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d03ca1fb
Member

Who owns the intellectual property

If I use the Upwork service who owns the intellectual property? I am thinking of hiring someone from Upwork to assist with a new business startup of mine. I am concerned that either 1) Upwork or 2) the freelancer from Upwork would have a claim to the intellectual property created.

 

 

39 REPLIES 39
petra_r
Member


@Ryan H wrote:

If I use the Upwork service who owns the intellectual property?

 


 You do.

 

 

Thank you for your response.

 

Is this information in your terms of service? If so, which paragraph section please?

 

Best regards,
Ryan

Caveat to Petra's answer - 

 

Once the freelancer(s) have been paid in full you own the rights.   Until then, the creator owns the rights to whatever he/she created.

rrayian
Member

Unless otherwise stated, you do. Have them sign an NDA, though, just to be safe. 

It should be noted that NDAs are more than difficult to enforce.  Do your due diligence - starting with talking to the potential frelancers you feel will do the best job.

Thanks again, and where in the Terms of Service is the ownership information?

 

Best regards,
Ryan

Ryan,

 

As others noted on this thread already, you own the work you paid for. Please, refer to the article 8.6 INTELLECTUAL PROPERTY RIGHTS or the User Agreement for more information.

~ Valeria
Upwork

Hello Valeria,

 

I understand that the "User" owns the intellectual property. What about any inputs that might be uploaded for the work? For example, documents that might contain confidential information? I understand those should not be used by Upwork nor by the freelancer. Is that correct?

 

Thank you very much in advance.

 

Best,

Pablo:

It isn't clear to me what you are referring to.

 

The person who pays for the work owns the work. It's not complicated.

 

I don't think there are any "what abouts"...

 

If I am paid for one hour of work by John... then EVERYTHING I create during that hour belongs to John. That includes "inputs" and "documents."

 

You mentioned "confidential information." I'm not sure what you mean by this. Clients do not ask me for "confidential information." Clients pay me to do work. And the intellectual property associated with that work belongs to them.

 

If you still have questions about this, please feel free to explain further.

Hi Pablo,

 

As I mentioned before on this thread, Upwork ToS contains clauses about ownership of product and intellectual property. There are also additional steps you can take to protect your business, information and ideas. Check out these articles for some tips:

 

4 Key Tips for Legally Protecting Your Business

Intellectual Property Protection: Non-Disclosure Agreements

Protect Yourself From Copyright Infringers

~ Valeria
Upwork

Hi, could you point me where the User Agreement states that intellectual property rights will be transferred to the client? In our case, we want to order a 3D model design. Do we need to sign / create our own agreement?

 

Article 8.6 is now "Records of Compliance", not "Intellectual Property". Did you move it elsewhere?

 

Thank you!

Hi Bartlomie,

Please use this Link to read about our Intellectual properties rights. In order to navigate to this section you will need to go to Terms of Service > Optional Service Contract Terms > 6. Intellectual Property Rights. Thank you!

~ Goran
Upwork

Hi Goran,

The "Optional Service Contract" is what I needed, thank you!

At what point do the freelancer and I sign it? I do not recall seeing this agreement at any point during registration. Should I ask the freelancer to send me I a signed scan?

Hi Bartlomiej,

If users are registered on the site and enter a contract, they agree to these Optional Contract Terms unless they agreed to any different terms. There is no need to sign the Optional Contract Terms separately but if you need the freelancer to sign any additional terms, you can discuss it with them directly.

~Nina

As a double safety you may ask the freelancer to sign and send this small little document.

 

:

 Upon Freelancer’s (my name is)receipt of full payment from Client (Your Name is) the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client (Your name is).


@Prashant P wrote:

As a double safety you may ask the freelancer to sign and send this small little document.

 

:

 Upon Freelancer’s (my name is)receipt of full payment from Client (Your Name is) the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client (Your name is).


 ...and then hope that you and your chosen freelancer are in the same country so that you can enforce the little agreement Prashant shared. 


@Reinier B wrote:

@Prashant P wrote:


 ...and then hope that you and your chosen freelancer are in the same country so that you can enforce the little agreement Prashant shared. 


 Reinier:  Not necessarily.  This would prevent the FL from suing the buyer.  I believe that is what the whole thread is about.  Buyers want to be sure that they own the work product without anyone claiming that they stole their work.

This is not strictly true, regardless of what the Upwork terms say. In the eyes of the law money changing hands is is no way, shape or form the basis for the client to retain exclusive IP rights to the work. You would need a specifically drawn up agreement with the client for that to be the case or it would not hold water. You are free to reuse your work and make changes to it as you see fit, including using that work on other projects and displaying it in your profile. You can't simply change the law for Upwork users or anyone else based on a few terms and conditions written on your website. If you are happy to do this, then I would consider charging a full release fee via a contract signed by both parties.

As a follow up to this, and it's quite a shock for me to read this, and I can only imagine it was implemented to avoid legal ramifications and side with clients as the source of the site's income, then freelancers in general on this platform need to charge at least 10 times more for the work they do to compensate for the other 9 times they can no longer use it. No freelancer in their right mind would willingly agree to this and I feel it has been unfairly forced upon us and severely limits our potential to pursue a livelihood on the platform. I would like to speak to a rep about this and I don't wish to be referred to the sites ToS thank you.


@James H wrote:

 I would like to speak to a rep about this and I don't wish to be referred to the sites ToS thank you.


 All the rep will do is reiterate the Terms of Service.

You are free to (try to) negotiate alternative terms with your client(s) but unless they still hire you under those alternative terms and agree to them, any contract with any client on the site (past, present and future) will be subject to the Upwork Terms of Service.

re: "it's quite a shock for me to read this"

 

It's quite a shock that clients own the intellectual property they pay freelancers to create?

> It's quite a shock that clients own the intellectual property they pay freelancers to create?

 

It really isn't that simple. I assume James is a designer?

 

I have my own templates that I've used to layout books. One client insisted that she was entitled to the In Design file so she could use the template in future herself. However, she'd explicitly agreed to my supplying her with a print ready pdf so ... 

 

The point is that at the time of agreeing a contract you make it explicit what you're selling. Even if you think the Upwork ToS are fine, it does no harm to reiterate what is covered by your agreement and what isn't. Saves bucket loads of potential grief later.

Kim F:

I appreciate your comments on the topic, and I agree that there are legitimate situations for which the default Upwork contract may not be ideal.

 

I think that freelancers using Upwork should understand that it is a general purpose freelancer work platform, and that it was not set up specifically for their job niche. As such, the default position that clients own intellectual property created by commissioned freelancers should not be shocking. Nor should this default contract cause any concern, given the fact that Upwork allows freelancers and clients to agree to any kind of alternative contract that supersedes the default one.

Any FLer who is of professional caliber knows to use specific to job contracts. Any client who wants quality work will be open to this.

 

 

Thanks Kim, this was very helpful.

re: It's quite a shock that clients own the intellectual property they pay freelancers to create?

 
Putting words into my mouth by rephrasing and altering the content of what I said to imply something I didn't state in my original argument, well done you! That's not what I said and you well know it. When you create work as a freelancer you are not generally under any contract or obligation to hand over IP rights. It's sad that you don't understand this and so willingly give away what is yours for such a small price. When you create as a freelancer, you generally only license the use of that work in a project. End of.

I appreciate all the other input in this thread, and will take the care to revise contracts where necessary.

Hello Pablo, 

 

Is you shere your documents with Microsoft's Information Protection (IP) you van protect your documents if you end your contract with them.

 

Kind Regsrds, 

Jo

Please can you update ? I don't see the intellectual property section in upwork user agreement 

Hi Fritz,

 

You can check Section 6 INTELLECTUAL PROPERTY RIGHTS under the agreement named the Optional Service Contract Terms.

 

Thank you!

~ Bojan
Upwork

Hi Bojan,

Why is the intellectual property rights ownership under "optional"? Is that the default setting (that the client owns all the property rights when contract is paid) or isn't it? Or is that something that needs to be stipulated and agreed upon Outside the normal contract? "optional makes it confusing to me...

 

Thanks,

 

Carl

 

Carl:
If you find the word "optional" confusing, then just ignore it.

 

It doesn't mean anything for you and your contracts with freelancers.

 

The only reason the word "optional" is there is because clients and freelancers are ALLOWED to adopt superceding contacts. If there is no superceding contract, then Upwork's default rules are in place:

If you pay a freelancer to do something, then the intellectual property belongs to you.

Thank you Preston...clear and concise...BOOM!

 

58967181
Member

UpWork itself seems to be able to take your IP too. Would love to have some clarification.


Section 2.4.2 explains that by posting content on the Site, you give others certain limited rights to that content, as detailed below:

You retain all ownership rights in any User Content you post on Upwork. To the extent permitted by applicable law, you also grant to Upwork and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content

re: "Would love to have some clarification."

 

What questions do you have about this section?

There's not much to say, really.


Upwork really does NOT have any interest in "owning" or "co-owning" your intellectual propertly.

 

Upwork is basically just pointing out that if Upwork users post content on the site, then that's okay.

 

For example, if you write a post here in the Community Forum, Upwork can pretty much use your post as it wants to.

 

But if you hire a freelancer to draw you a picture of a cat, then YOU own all intellectual property rights for that picture. Just don't post that picture in the Community Forum or let anybody post it in a portfolio.

thanks for the opinion. looking for facts on the t&c where it states exactly so. It does cover freelancer

"Client grants Freelancer a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Freelancer Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials."

I would be grateful if you could clarify one moment for me.

Optional Service Contract Terms (article 6.4) include the terms that  Intellectual Property Rights in the Work Product will be the sole and exclusive property of Client upon Freelancer’s receipt of full payment.

 

Does Upwork Terms and Service automatilly include Optional Service Contract Terms?

Or should we enter into Optional Service Contract additionally by putting a checkmark somewhere at Upwork or by exchanging emails and signing the agreement separately?

 

Thank you very much in advance!

re: "Does Upwork Terms and Service automatically include Optional Service Contract Terms?"

 

Yes.

 

There is no need to do anything else separate from the standard accepting of the Upwork contract.

vladag
Community Manager
Community Manager

Hi Elena,

 

I'd like to follow up on the information Preston already shared and confirm that the Optional Service Contract Terms are the default and apply to the contract unless both parties agreed to different terms.

As a side note and not related to your question about the Optional Service Contract Terms, it's always best to discuss the contract terms and any related concerns you might have with your freelancer and agree on them in writing in Messages, in order to ensure you have the same understanding and expectations. 

agreed to in writing

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