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Who Owns the Design?

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Ace Contributor
Teddi B Member Since: Aug 2, 2015
1 of 28

Who Owns the Design?

 

I’m a graphic designer specializing in book cover design. In my Terms & Conditions, I state that I retain copyright of the design but grant the client the right to display the work and reproduce it.

 

In Upwork’s User Agreement section 8.6, it states that the client owns the design after it has been paid in full. Is this correct or am I misinterpreting it?

 

Under US copyright law, all rights and ownership belong to the creator of the work. The exception to this is work-for-hire, which means if the designer is a full time employee then the work the designer creates is owned by the employer. A freelancer is not a work-for-hire.

 

Unless I'm misinterpreting this, there seems to be a conflict. I'd appreciate any help in clarifying it.

Community Guru
Petra R Member Since: Aug 3, 2011
2 of 28

Once paid for the client owns it, in full, unless both parties agreed something different in advance.

 

"Work for hire" is not just in the course of employment. You are free to negotiate your own terms before a contract starts, but this may put you at a competitive disadvantage compared with other freelancers who do not impose conditions that differ from Upwork's.

Ace Contributor
Teddi B Member Since: Aug 2, 2015
3 of 28

Is it Upwork's place to say that a client owns a design? Whether we like it or not, we have to abide by copyright laws.

Moderator
Vladimir G Moderator Member Since: Oct 31, 2014
4 of 28

Hi Teddi,

 

Unless you create your own agreement with the client to retain the ownership of the work you created and received payment for, the copyright will be transferred to your client after receiving the payment, as outlined in the ToS article you mentioned.

Ace Contributor
Teddi B Member Since: Aug 2, 2015
5 of 28

How are typefaces and royalty-free images supposed to be addressed? I’m not trying to be difficult. My goal is to protect myself.

 

Here’s what the AIGA says about Work for hire.

 

Work-for-hire

This is also called “work made for hire.” It refers to original work made by an employee, in which copyright ownership automatically belongs to the employer. It can also refer to original work made by an independent contractor or a design firm, in which copyright ownership might automatically belong to the client, but only under certain limited conditions. If your work doesn't meet all of the criteria, copyright will belong to you unless you assign it to your client. The work must be specially ordered or commissioned, a written agreement must be signed saying that it is a work made for hire, and the work must fall within one of the following nine categories:

  • A contribution to a collective work (such as a magazine, an anthology or an encyclopedia)
  • A work that is part of a motion picture or other audiovisual work (such as a website or a multimedia project)
  • A translation
  • A supplement prepared as an adjunct to a work created by another author (such as a foreword, an appendix or charts)
  • A compilation (a new arrangement of preexisting works, such as a database)
  • An instructional text (whether it is literary, pictorial or graphic)
  • A test
  • Answer material for a test
  • An atlas
Community Guru
Douglas Michael M Member Since: May 22, 2015
6 of 28

@Teddi B wrote:

....Here’s what the AIGA says about Work for hire.

 

Work-for-hire

This is also called “work made for hire.” It refers to original work made by an employee, in which copyright ownership automatically belongs to the employer. It can also refer to original work made by an independent contractor or a design firm, in which copyright ownership might automatically belong to the client, but only under certain limited conditions. If your work doesn't meet all of the criteria, copyright will belong to you unless you assign it to your client. The work must be specially ordered or commissioned, a written agreement must be signed saying that it is a work made for hire, and the work must fall within one of the following nine categories....


Teddi,

 

OK, let's agree that work done for Upwork clients does not "automatically" belong to the client as "work made for hire."

It doesn't matter. It's a red herring.

Upwork's default terms say the client owns copyright upon payment. That is, our default contract with the client treats creative work done here as if it were work for hire. There's your "automatic," de facto work-for-hire.

If you wish to retain rights, you must specify them, as you say you already do. Upwork has confirmed many times what you have been told here, that such retention of rights supersedes Upwork's default terms. (If you do have your own standard contract, you might want to include a supersession clause in it; chances are Upwork has one somewhere in their ToS, despite repeated assurances here by their agents that in instances like those we are discussing, our individual freelancer-client contracts hold sway.)

Obviously you would want to make your retention of rights clear to prospective clients during negotiation; some prospects may not find your terms acceptable.

Best,

Michael

Ace Contributor
Teddi B Member Since: Aug 2, 2015
7 of 28

Thanks for your input Michael.

Community Guru
Tiffany S Member Since: Jan 15, 2016
8 of 28

I haven't had occasion to research this issue in any depth, but I would think that a book cover would fall under "supplemental materials" as defined by the U.S. Copyright Office here: https://www.copyright.gov/circs/circ09.pdf

 

Of course, you are still free to contract otherwise, but I do believe that a work-for-hire agreement could properly apply to such work.

Ace Contributor
Teddi B Member Since: Aug 2, 2015
9 of 28

Thanks Tiffany. I will check out the link.

Community Guru
Jess C Member Since: Feb 18, 2015
10 of 28

From AIGA: "copyright will belong to you unless you assign it to your client."

 

By using Upwork, you agree to the Terms and Services, which specify that the rights belong to the client - so you've "assigned" copyright for all intents and purposes.

 

Typefaces and royalty-free images have their own licenses that allow you or the client to use them as part of the overall work. In most cases, a freelancer can't transfer those licenses, so the client is responsible for having them. Part of my service is to lay out for the client what licenses they'll have to purchase if they don't have them already, before work begins. If they want special fonts or licensed stock images, they must supply them. Otherwise I use only materials that are freely licensed for commercial use.

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