Re: Intellectual Property Rights - Presentati...

Samantha K · ‎09-13-2019

Hi team,

I was engaged by a client to create and layout a flyer for them. They supplied their styleguide, logo, and images.

The contract was manual hours which I thought was acceptable - there was a delayed response and I had partially started the work on my end. Client is now disputing my hours spent (5 hours) even though hourly rate was agreed to, and the contract stated no more than 5 hours of work.

My question is: I submitted the final files to the client as there was a deadline and they hadn't disputed my hours yet. I believed I would be paid for my hours once the project was finished (not unreasonable!) I haven't had any more contact from the client since sending these files, as well as a complete breakdown of a timesheet I logged.

What can I do? And who owns the flyer design, especially since the client supplied the content?

Thank you,

Sam

Petra R · ‎09-13-2019

Samantha K wrote:

What can I do? And who owns the flyer design, especially since the client supplied the content?

Bad news: You will lose the dispute. (Manual time = game over)

Good news: As you were not (will not) be paid, you own the flyer design, but can't use it or put it in your portfolio because it includes stuff you do NOT own, unless you just exchange everything you don't own to stuff you do.

Mark F · ‎09-13-2019

Samantha K wrote:
Hi team,

I was engaged by a client to create and layout a flyer for them. They supplied their styleguide, logo, and images.

The contract was manual hours which I thought was acceptable - there was a delayed response and I had partially started the work on my end. Client is now disputing my hours spent (5 hours) even though hourly rate was agreed to, and the contract stated no more than 5 hours of work.

My question is: I submitted the final files to the client as there was a deadline and they hadn't disputed my hours yet. I believed I would be paid for my hours once the project was finished (not unreasonable!) I haven't had any more contact from the client since sending these files, as well as a complete breakdown of a timesheet I logged.

What can I do? And who owns the flyer design, especially since the client supplied the content?

Thank you,
Sam

Samantha,

I am sorry this happened to you. Going forward I would only use manual time on an hourly project with a client you have already established signficant trust with (I think this is probably obvious advice but I cannot help but get it). By generating manual time I believe you will lose the dispute and it may well be the client knew this going in.

As to your question...first the obligatory I Am Not A Lawyer disclaimer...

Both by Upwork Terms of Service and likely the law the Intellectual Property in question is like yours. I can tell you that my understanding of United States Copyright law you would without question own the IP rights and could file for a US Copyright and then sue them for infringement. I cannot speak to how this would necessarily work in other countries necessarily and I certainly cannot tell you how it works between two different countries.

As far as Upwork's TOS I believe your IP rights are covered here:

https://www.upwork.com/legal#optional-service-contract-terms

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.

These OPTIONAL terms exist and I believe are in force unless you to came to some other agreement that supersedes them.

So if the client uses your materials without paying you the are, in my opinion, violating Upworks TOS and Upwork should be notified, and I think you would do so here:

https://www.upwork.com/legal#prirp

Knowing all this may not help you because there may be a limited amount of things you can do to actual stop them (if you even know they are using it). However, you may find that a good implied threat might work.

Samantha K · ‎09-13-2019

Hi Mark,

Thank you for your detailed response. That makes complete sense to me, and I know for a fact that the client was going to print and distribute this flyer for use at a convention this weekend.

I will going forward be selective using manual hours, and I feel you are right that the client knew this loophole and used it to their advantage.

I wanted to find out my IP rights as a mere tool to send to the client to try and push for payment or come to a solution.

Much appreciated,

Sam

Mark F · ‎09-13-2019

When I first started out I had a friend put me in touch with a non-profit that wanted a website built. I designed a mock-up for them on spec because I wanted the larger work. Of course I didn’t get it they had someone tell them they could do it for a tenth what I had quoted (which makes one of us a fool for sure).
Long story short I still use that design all the time with clients. I did like Petra said and tore out their bits. That is probably the only satisfaction you are going to get.
I encourage you to ask questions on this forum and let us help you try to wipe this experience off the books.

Tiffany S · ‎09-13-2019

Mark F wrote:

Knowing all this may not help you because there may be a limited amount of things you can do to actual stop them (if you even know they are using it). However, you may find that a good implied threat might work.

She can actually get an injunction to keep them from distributing the brochures they have presumably paid to have printed if they don't pay her. That's probably not cost-effective, but it's a hell of a threat.

Petra R · ‎09-13-2019

Tiffany S wrote:
Mark F wrote:

Knowing all this may not help you because there may be a limited amount of things you can do to actual stop them (if you even know they are using it). However, you may find that a good implied threat might work.
She can actually get an injunction to keep them from distributing the brochures they have presumably paid to have printed if they don't pay her. That's probably not cost-effective, but it's a hell of a threat.

I only once (in all my years here) came close to (maybe?) not getting paid. It was back in the day when there was no Escrow at all so you basically got paid if and when the client felt that way inclined.

I had translated a lengthy presentation as well as a conference-pack for a big product launch at a very fancy hotel in Bavaria.

The client went silent on me after I submitted the work - so I eventually had a German lawyer fax a vague but strongly worded promise of action to stop the event going forward to the hotel and the client the day before, as the material used was not owned by the client, hence could not be used without my permission and I wanted payment in full before granting it.

I was paid not 15 minutes later with a big fat apology. I probably could not have done that without a lawyer in the family though.

Wendy C · ‎09-13-2019

Samantha, as others have noted - until you are paid in full and the money is in you bank account - you own the work. If you can't scare the client into paying, then tweak, change, or substitute their logo and then use it as an example of your work. BTW, it is perfectly acceptable to use it as a sample attached to a proposal; just do not put it as is in your U. portfolio.

Samantha K · ‎09-13-2019

Thanks Wendy. That was also my follow up question to this situation - if it was acceptable to use in my portfolio or as an example of work.

Mark F · ‎09-13-2019

Tiffany S wrote:
Mark F wrote:

Knowing all this may not help you because there may be a limited amount of things you can do to actual stop them (if you even know they are using it). However, you may find that a good implied threat might work.
She can actually get an injunction to keep them from distributing the brochures they have presumably paid to have printed if they don't pay her. That's probably not cost-effective, but it's a hell of a threat.

Yeah, I was thinking Cease and Desist but without a lawyer's letterhead I am not sure it would do any good. Would it be WORTH engaging a lawyer to do it?

No.

Would I do it to go after the cheap SOB...probably. It's one thing to steal someone's time but quite another to take their work.

But would it be worth it...probably not.

Tiffany S · ‎09-13-2019

Mark F wrote:
Would it be WORTH engaging a lawyer to do it?

No.

Would I do it to go after the cheap SOB...probably. It's one thing to steal someone's time but quite another to take their work.

But would it be worth it...probably not.

This is the funnest part of having a law degree in your back pocket.

Mark F · ‎09-13-2019

Not all of us had the foresight to do that Tif!

Intellectual Property Rights - Presentation Layout using Client's Logos/Images