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wasilewskajewel
Community Member

Creative Designer's copyrights

Hi Dear Designers!

 

I woudl like to make some discussion about copyrights. To understand why so many people give up from own rights and something that make them live more comfortable.

We all work as freelancers here so also we are business people - I guess that a lot of you has your own companies and also we should to care to not be explored by third parties and simply take care of our business.

I am working as a jewellery designer - I design product which after is selling by some companies (by them name). Every time when I say that I keep my copyrights and from sales I want royalties I heard the answer - OTHER FREELANCERS DESIGNERS DON'T ASKED US FOR IT !!! and basically, we do not go to the work level, because they know that they will find someone who gives them everything for free and ask little money to make the project.

And here is my questions:

Do you really give up on your copyrights?
What do you think/ feel when you get one time paid (and let be honest, no one here wants to pay well) and after you see that your product is selling and produced for many years and you don't have anything more from that?

To people who respect their own time, work and skills
How do you talk with your clients about copyrights?


I am very interested to get know your points of view.

*****And please don't talk about the terms of Upwork because this is a default contract in the event that you do not enter into any personal contract with a potential customer.

 

 

Thank you

K.

15 REPLIES 15
wasilewskajewel
Community Member

Any thoughts? 🙂

jr-translation
Community Member

The clients read the ToS that is why they are here and this is what they expect.

 

For everyone else:

 

You are doing WFH and unless stated otherwise in a contract you have with the client, all the rights are transfered to the client. This means no royalties etc.

 

6.4 OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY

Upon Freelancer’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), 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 payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.


Jennifer R wrote:

The clients read the ToS that is why they are here and this is what they expect.

....

You are doing WFH and unless stated otherwise in a contract you have with the client, all the rights are transfered to the client. This means no royalties etc.


Your response is correct in effect, thank you. With apologies, I need to raise two quibbles.

 

The ToS—between clients and Upwork, and between freelancers and Upwork—is not the same as the "optional" (default) contract. That contract is assumed by Upwork to govern any disputes between its users, and determines Upwork's response (or lack of same). It is called optional to make explicit that clients and freelancers are free to contract with each other on their own terms.


Technically, "Work for Hire" under US law applies to employment (and to a limited number of commissioned works under certain conditions). For most of us, most of the time, it is not that WfH law applies, it is that Upwork imposes the equivalent of WfH as part of its "optional" (default) contract terms.

 

As noted here and elsewhere, we are free to negotiate anything we like with clients. Clients are free to reject our proposals, or reject negotiation entirely. As fewer and fewer clients have familiarity with traditional legalities, licenses, practices, and courtesies in the fields of publishing and use of creative work, it becomes a harder and harder sell to get them to consider negotiations or niceties—whether they get their understanding of intellectual property from Work for Hire provisions, Upwork's default contract, or their Make the Internet your Cash Cow handbook.

Dear Jennifer, 

Please read the post before you comment.

As I wrote The Upwork has a default contract - to protect of course own business and of course fish the biggest number of the clients but you as a designer lose on This contract in Upwork rules as you said is not obligatory - you can create own condiction of work. And here is my question why do you not use your own legal rights and let your talent be used? Do you think you don't have the right to get royalties from your own work which is reproduced and bring unlimited profits to third parties?

 

I read the post, that is why I replied to you and for others.

 

The default information for clients is: They pay - they own. This is one of the reasons why they come here. This makes it easier for Upwork. Who would follow up on the royalties and makes sure you get paid what you are owned? Who will cover the extra expensis.

 

FYI: I sometimes translate fiction. Any contract outside Upwork says that I own 100% of the copyright and the client pays me for creating the translation and then in return gets permission to use the translation for a certain amount of time, e.g. 2 years. This is defind for every use: hardcover, paperback, ebook, audiobook. After that I can use the translation as I like.

 

Freelancers that choose to work on Upwork are aware of the problem, but you will have a hard time to convince a client that he has to pay royalties to you if all the other freelancers are fine getting paid only once.

Hi Jennifer,

Thank you for your answer.


"Who would follow up on the royalties and makes sure you get paid what you are owned? Who will cover the extra expenses."

****Well, each business has expenses right? more that potential company has regular incomes from your work right? so it is profitable for them to create one document once for 3-6 months. anyway. You don't think so?

I would like to know the side of freelancers, not clients. We are all here to find collaborators on fair condiction for both sides.
Also, I have seen that your work is not creative work - you don't create your own product maybe that is why we cant find eachother.
Maybe for your professional area, I will give you an example. If someone will ask you wrote the book - from the beginning till the end, you write and create the story and after those, someone will sell your book in unlimited copies as own and you will not get anything more from your own book is fair for you? Will you be happy with this collaboration, or do you still will be thinking is not worth fighting about your own rights because of stupid Upwork rules?

The Upwork is one of the largest platforms for freelancers you don't think so that this is rule is a scandal?


"Freelancers that choose to work on Upwork are aware of the problem, but you will have a hard time to convince a client that he has to pay royalties to you if all the other freelancers are fine getting paid only once"

And here is a problem! and the main thing in my post! Why do they agree on this if they have a choice?
I would like to get information from designers on why they give up from copyrights, and from those who do not give up from copyrights how they talk with potential clients about this topic.


Kamila W wrote:

Hi Jennifer,

Thank you for your answer.


"Who would follow up on the royalties and makes sure you get paid what you are owned? Who will cover the extra expenses."

****Well, each business has expenses right? more that potential company has regular incomes from your work right? so it is profitable for them to create one document once for 3-6 months. anyway. You don't think so?

Again, who will cover the cost that arise tofollow up on the royalties? Why is it profitable for the client to do extra paperwork and then pay you?

I would like to know the side of freelancers, not clients. We are all here to find collaborators on fair condiction for both sides.
Also, I have seen that your work is not creative work - you don't create your own product maybe that is why we cant find eachother.

You clearly did not read my message.

I own 100% of the fiction translations I create outside Upwork. 
Maybe for your professional area, I will give you an example. If someone will ask you wrote the book - from the beginning till the end, you write and create the story and after those, someone will sell your book in unlimited copies as own and you will not get anything more from your own book is fair for you? Will you be happy with this collaboration, or do you still will be thinking is not worth fighting about your own rights because of stupid Upwork rules?

If a client would hire me on Upwork as a ghostwriter, I would make sure I get paid enough for the work so I do not have to hassle with royalties. One the client paid the agreed amount, it no longer is MY book.

The Upwork is one of the largest platforms for freelancers you don't think so that this is rule is a scandal?


"Freelancers that choose to work on Upwork are aware of the problem, but you will have a hard time to convince a client that he has to pay royalties to you if all the other freelancers are fine getting paid only once"

And here is a problem! and the main thing in my post! Why do they agree on this if they have a choice?
I would like to get information from designers on why they give up from copyrights, and from those who do not give up from copyrights how they talk with potential clients about this topic.


No one has to agree with th default rules. You can offer clients two choices:

1. A higher rate that grads the client the copyright.

2. A lower rate and the client has to pay royalties.

 

Try to build up a reputation on Upwork and start with your profile.

If you started your business in 2010, then yes, you have "More than 4 years experience". But you are in your 12th year. Why not something like "more that a decade of successful freelance designs".

Personally, I also hate profiles that include "Jewelry is not only my hobby but the way of life."  I want to hire someone who does the job professionally, not as a hobby. Let jewellery design be your passion but don't "reduce" it to a hobby.

Name the companies you worked for in the past.

Use British spelling in one profile and American for the other. Add more keywords. I cannot help but wonder how many people might find you by looking for an engagement ring.

Create a product catalogue for individual designs.

 

I am sure you won't be able to change the current system and beating it is just as impossible. Your best chance is to play it the best you can.

petra_r
Community Member

It's really very simple.

If you want to retain rights, create your own contract and get your clients to agree to them (if they will... many won't). 

Otherwise, the default ones apply.

Petra, 

The main point in my post was why designers let use themself by others. 

I create my own contract but is difficult to "fight"  with not educated people about their own rights, law general and the mechanism of the business. 

If you are a designer I would appreciate why you give up on your copyrights and royalties if they bring you passive incomes long as how long your creation is used by the third party? Do you think is really fair to you that someone has unlimited income from your work and you do not? more that you are not permanently hired but make some project from time to time.

feed_my_eyes
Community Member

About a decade or so ago, I would have agreed with you that designers should negotiate usage rights. But it's an uphill battle these days, even with clients off of Upwork, so I just don't bother any more. Most people here don't seem to understand anything about copyright, so if you're a client and you get one bid from somebody who wants to negotiate, and 49 bids from freelancers who will hand over their work with no strings attached, then who would you choose?

 

But you're free to try and negotiate, just as you're free to set whatever rates you like (you don't have to work for low-paying clients). It's a matter of convincing them that you're worth it.

 

I will say that it's very annoying to have Upwork tell clients that they own every aspect of the work after it's paid for, because I frequently use stock photos and icons in my work. I have to go out of my way to warn clients that they do NOT own the copyright to all components of the design.

Thank you Christine for your answer. 

I think it the matter about education - first freelancers who later can educate own clients in this area. The agreement of the copyright is fair for both sides and both sides can get fair profits.
If the designer will respect their own work this situation could be changed. Unfortualanty from the biggest part of comments here, I sadly need to admit that people don't understand what they are doing and from what they are giving up - paradoxically miss the imagination 😞

I would like to create here a topic because this part about copyrights in Upwork rules should be removed.


Kamila W wrote:

Thank you Christine for your answer. 

I think it the matter about education - first freelancers who later can educate own clients in this area. The agreement of the copyright is fair for both sides and both sides can get fair profits.
If the designer will respect their own work this situation could be changed. Unfortualanty from the biggest part of comments here, I sadly need to admit that people don't understand what they are doing and from what they are giving up - paradoxically miss the imagination 😞

I would like to create here a topic because this part about copyrights in Upwork rules should be removed.


A more likely and mangeable outcome is that creators who are at the skill level at which they can demand ongoing income from their creations will either present their own contracts to suitable clients or not use a platform such as Upwork to find gigs. For the client and freelancer who want to enter into a simple exchange that does not bind one to the other into perpetuity, the complete transfer of rights is the best choice. Many people who offer creative and non-creative work on Upwork do not want to invest time educating purchasers. And, many purchasers would quickly seek out another seller if presented with a contract that limited their ownership and usage rights. 

As an aside, writers on Upwork sell their works--including entire books--every day without concern for retaining royalty rights. That is the nature of this type of platform and commercial exchange. There may be creators who do not realize all that they are selling when they enter into an agreement here. But that becomes a matter of self-education. 

You're definitely right that it's a matter of education. A huge number of "designers" on Upwork have had no training or experience whatsoever, and many aren't even creating work from scratch anyway, so they wouldn't be able to impose usage rights even if they understood what that meant. Upwork lets everyone join without restrictions, with the result that anyone who's spent an hour downloading stock artwork claims to be a designer here. It's just not a very professional marketplace, so you're facing an uphill battle if you want to turn it into one.

 

Personally, I used to negotiate whenever clients even asked me for my source files, but I've become worn down over the years to the point where I think it's just not worth the time and effort any more. The bottom line is that it's difficult enough to be on Upwork charging the rates that I do, without me also requiring clients to sign contracts that contradict Upwork's official ToS. If you can persuade clients to agree to your terms, go for it, but don't expect every other designer to follow your lead. You need to pick your battles around here.

prestonhunter
Community Member

re: "To understand why so many people give up from own rights"

 

For money.

wasilewskajewel
Community Member

Hi Preston,

If money were to be answered, it would rather be everyone
will strive for royalties because they bring you passive incomes as long your creation is used and sold by 3rd parties.
One time payment is a very short vision.

Unfortunately, what I have read here is not going about money but lack of basic education in a very important field.

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