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If I refund a project, does the copyright on the work revert back to me?

dksewardcreative
Active Member
Dannette S Member Since: Feb 18, 2021
1 of 10

Hi all - 

 

I'll try to be brief, as it's the usual story around these parts: a hugely difficult client has paid for two milestones on web copy (with no milestones outstanding), and is now coming back to me demanding rewrites and additional work on those milestones beyond the original scope of the project (after a highly problematic two months of changing goal posts leading up to the submission of the work in the first place).  

 

All of my antennae are up with this one - I foresee undertaking this additional work for her (I want her to be happy but I'm not sure that's possible at this point), only to have her lambast me in my public feedback at some point when the contract is closed.  She is a bit, shall we say, mercurial.

 

I'm inclined to refund her money in its entirety and close the project.  Her emails are emotional, accusatory, and borderline abusive -  it's just a lot of nonsense I'd prefer to put an end to.  I realize I will take a hit on my JSS score if she leaves private feedback when I close the project, but it seems worth it at this point to no longer have to deal with her and obviate the potential for public negative feedback.

 

I won't refund her for my work though if she's legally able to use it (the site has not gone live as of yet).  The UW TOS are clear about IP moving to the buyer upon payment "irrevocably,"  but there is no discussion of what the status is when those funds are refunded in full. 

 

Can anyone help me with clarification on this?

 

Thanks all - this forum has been a wonderful resource to this relative newbie so thanks to all of you who devote your time to offering your insight - it means a lot.

 

Dannette

prestonhunter
Community Guru
Preston H Member Since: Nov 24, 2014
2 of 10

Based on what I have read in the Forum, this is what I believe characterizes the current consensus position on this question:

 

If a client pays you for work, all rights to that work go to the client.

 

If you voluntarily issue a complete refund, doing so WILL REMOVE the job from your profile job history. But if the client didn't ask for the refund? No, that doesn't mean the copyright reverts to you.

 

Of course, keep in mind that some of this is a bit "squishy," and not necessarily something Upwork wants to take a hard clear stance on. Copyright ultimately is not like a PDF file: Acrobat Reader recognizes the file and can open it, or not. Having or not having the copyright to something may be an opinion, and relies heavily on your willingness to defend or affirm your claim.

dksewardcreative
Active Member
Dannette S Member Since: Feb 18, 2021
3 of 10

Thanks, Preston.  I think I'd happily, nay enthusiastically, enjoy defending my claim to copyright should I have the legal grounds to do so and it came to that with this client using my work after a full refund.  

 

But, yes, squishy is the word.  If anyone has dealt with this or has anything to add to Preston's take, please let me know. 

kfarnell
Community Guru
Kim F Member Since: Aug 26, 2015
4 of 10

Assuming that:

 

  1. You didn’t agree to any other contract over and above Upwork’s terms.
  2. The copy was not based on material supplied by the client and was totally original work.

Copyright passes to the client on full payment. If you refund, you aren’t in receipt of payment and therefore the client doesn’t possess copyright.

 

The client could use the copy if you explicitly stated they could (even after a refund), but that wouldn’t actually give them copyright.

 

Copyright isn’t a matter of opinion, it’s a matter of law. It may be difficult or impractical to assert copyright if a client uses work produced without paying, but that doesn’t suddenly make it legal.

 

Presumably, you already quoted for the out-of-scope work so the client had the option of paying for the additional work and refused?

 

Also, I wouldn’t be so quick to assume she’ll leave bad feedback. One of my rudest clients who made absurd accustations in private messages left me sterling feedback. Some people will treat what they say in public and in private in different ways. Although WE know that private feedback is damaging, many clients will see it simply as ‘feedback’ and not make any distinction and they don’t want to wash their dirty laundry in public. Mercury flows in all directions.

dksewardcreative
Active Member
Dannette S Member Since: Feb 18, 2021
5 of 10

Hi Kim -

 

1. No other contract

2. 100% original work

 

Thanks for your input on the copyright issue and your thoughts on the rest - No, I've not asked for additional payment (nor have I agreed to the work yet) for the scope creep.  She's all over the place and I just don't have the energy to deal with another shrieking, accusatory email that I'm trying to rip her off, etc., so I'm taking the day to consider my options.  I'm also concerned that asking for payment for the additional work is just going to open the door to her demanding even more and this project never coming to an end - there's a pattern here. A one-week, one-off project is now at the 9-week mark so - sigh - yeah.

 

Aaaaaanyway, as I said, it would be worth it to me to refund her and cut her loose and just be done with her.  But I'm having trouble reconciling myself with the possibility of her being able to use my work despite a refund, so I need to think it over. If I'm fairly certain she would be in the wrong to go ahead and use my work even after a refund, I would have no problem filing the takedown and engaging in any other legal action required for accountability, but I thought it best to gather some input and information before opening the door and heading off in that direction.

 

And thanks for your insight about the feedback - it's a very good point and something I will add to consideration before moving forward. 

feed_my_eyes
Community Guru
Christine A Member Since: May 4, 2016
6 of 10

Kim F wrote:

Copyright passes to the client on full payment. If you refund, you aren’t in receipt of payment and therefore the client doesn’t possess copyright.

 


I'm no legal expert, but I'd be inclined to go with Preston's take on this matter. If a client refuses to pay, then no, they don't own the copyright, but I don't think that a freelancer can voluntarily offer a refund and retain the copyright. Otherwise, what if I were to create, say, a T-shirt design for a client and it ended up being hugely popular and they made a lot of money from it - I wouldn't be able to voluntarily return their payment and suddenly say that I own the design. That would be a minefield, and no court would defend my actions.

 

I wouldn't offer the client a refund at this point. Let her pay for the work that you've done so far; it sounds like you've earned it. If she does leave you horrific written feedback, then you can make a decision.

dksewardcreative
Active Member
Dannette S Member Since: Feb 18, 2021
7 of 10

Thanks, Christine.  Yes, it's messy and unclear.  A lawyer friend (not an expert in copyright or IP) has flown the idea that I suggest to her that she can request a refund if she is dissatisfied with the project, with the understanding that, should she make that request and be fully refunded, the material I have provided her remains my IP and copyright, subject to DMCA, etc.

 

It's all so murky. 😆

kfarnell
Community Guru
Kim F Member Since: Aug 26, 2015
8 of 10

Christine A wrote:

I'm no legal expert, but I'd be inclined to go with Preston's take on this matter. If a client refuses to pay, then no, they don't own the copyright, but I don't think that a freelancer can voluntarily offer a refund and retain the copyright. Otherwise, what if I were to create, say, a T-shirt design for a client and it ended up being hugely popular and they made a lot of money from it - I wouldn't be able to voluntarily return their payment and suddenly say that I own the design. That would be a minefield, and no court would defend my actions.

That's a different situation. The t-shirt design would have been held by the client at the time of printing and the contract would have been fulfilled. This contract is still open and the copy hasn't been published.

 


 

vladag
Community Manager
Vladimir G Community Manager Member Since: Oct 31, 2014
9 of 10

Hi Dannette,

 

I'm sorry to hear about the issue that arose on your contract and the dilemma you're having. In order to offer more contract-specific insight and advise on your TOS question, I've asked one of our team members to reach out to you directly via a support ticket you'll receive a notification for on your registered email address. 

Thank you for posting your question in the Community and hopefully you'll be able to resolve the contract issue amicably. Feel free to follow up once the issue is resolved and if you have any other questions or feedback. 

Untitled
dksewardcreative
Active Member
Dannette S Member Since: Feb 18, 2021
10 of 10

Thank you so much, Vladimir!

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