Owner Rights

[anelatatlic]

Hello,

I have a situation going on here and would use any help you can share.

I am a food photographer, and as one I have a big base of pictures. Recently I did a job, sent the pictures, but also uploaded them to stock photos for a sale. 

My client found that and got very angry, calling me a thief etc. 

Now my questions?

Did I do wrong? I thought I was the owner and have every right to use pictures as the client and I did not sign any contract?

By accepting a job through Upwork, is my all content automatically someones else? Do I lose all the rights? 

I would really love to know your thoughts on this and well policy of course. I did take down the pics from the stock photos but would love to know more about this. 

If possible, help, please. 

Thank you. 

[petra_r]

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Anela T wrote:

I am a food photographer, and as one I have a big base of pictures. Recently I did a job, sent the pictures, but also uploaded them to stock photos for a sale. 

My client found that and got very angry, calling me a thief etc. 

Now my questions?

Did I do wrong? I thought I was the owner and have every right to use pictures as the client and I did not sign any contract?

---

On Upwork, unless otherwise agreed in advance, the ownership passes to the client upon payment. So your client is right.

Without an agreement between you and the client in advance, these terms are valid and in force.

I doubt many clients would agree to pay you for taking bespoke photos and for them to then be on stock photo sites. If clients wanted to have something that can be bought from stock photo sites, they'd just buy from those. Much cheaper.

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.

[anelatatlic]

Thank you...it makes sense of course. I used to sign contacts in the past and I thought that was exclusive, Honestly, I had no idea, but I will fix it. Thank you. 

[wlyonsatl]

Anela T.,

You should contact a lawyer for the final word on this subject, but if you and the client clearly and transparently agree before you begin work for the client that you will be allowed to use such photos for other purposes, that is up to the two of you. I am not a lawyer, but some Upwork terms reflect Upwork's role as an intermediary creating default terms which two parties can, to some extent, mutually agree not to follow. Only a lawyer can provide you specific and reliable advice on this.

Of course, the question isn't at all about whether the client wants to buy pictures from a service. They are, presumably, contracting for your services because they already know don't want to use what they have already seen is available on stock photo sites.

They will receive the exact photos they need directly from you but once their needs are fulfilled, they may (or may not) allow you to re-use the photos in a way that doesn't interfere with their original use. (For example, the client might require that you not use the photos for another purpose until six months have passed from their original delivery to the client.)

But you can't know without asking them and getting their prior agreement.

Good luck.

[anelatatlic]

Thank you for the advice, but I feel like I messed it up here. I really was not aware of the contract and stuff. 

Just to remember that on the next run.

[wlyonsatl · Accepted solution]

For example, Anela T., you will see in this Upwork document:

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

...the following text...

QUOTE

Client and Freelancer have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that Upwork is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Upwork and any User or a partnership or joint venture between Upwork and any User.

With respect to any Service Contract, Clients and Freelancers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Upwork’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions.

UNQUOTE

As you can see, the text specifically refers to "assignment of rights" as one potential element of your mutual agreement with a client that allows for an arrangment other than Upwork's default "work for hire" structure.

[a_lipsey]

Forget about policy, did you really think this was good business? If I were a client, and I paid you to take original photos, then you took photos I PAID for and turned around and sold them to other people; I would be pissed as hell, and I  would likely demand a refund and leave a very poor review.  So maybe the question isn't, did I do wrong, but did I do good business? 

Now, did you do wrong?  What's legal and what's ethical are two different questions. This seems pretty unethical to me. It's been a while since my intellectual property classes in grad school, but most artists take the time to study at least general IP principles so they don't get caught up in these matters. I really suggest you do some reading from credible sources on IP rights before taking more work.  It's okay to make mistakes, but time to get your ducks in a row now. 

ETA: I looked at your portfolio and now I'm hungry. You obviously are very good at what you do. Just  learn more about how IP works because you clearly are running a good business so far. 

[wlyonsatl]

There will be nothing even remotely unethical about it, Amanda, as long as both client and freelancer clearly agree upfront to share ownership rights to a work. 

I'd guess some clients will say "no," especially if the client's branded or unique items are included in the photographs. Or a client who works for a big corporation might say no based on corporate policy that isn't worth the effort to ask for an except to.

But if the photos are of a specifc public place from a specific vantage point or at a particular time of day, a client may not care whether the freelancer adds the photos to her portfolio for potential use by other parties.

If the client says "no" to the request, then that's the end of it. If they say "yes," then the rights are shared to an extent defined by the terms of the agreement between client and freelancer. I am not aware of any proviso of US or other countries' laws or Upwork's terms of service, etc. that generally disallows that option.

[petra_r]

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Will L wrote:

There will be nothing even remotely unethical about it, Amanda, as long as both client and freelancer clearly agree upfront to share ownership rights to a work. 

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The point is that in the OPs case, they didn't. That makes it a different situation altogether on Upwork.

In absence of any agreement to the contrary, the default terms are deemed accepted by both parties as per the T.o:S.

That's why the client was upset. 

[prestonhunter]

There is no need to contact a lawyer about the original poster's now-concluded contract.

If the client hired a freelancer to create original work, then unless they explicitly established a separate contract, Upwork's default contract is in force. And that means the work belongs to the paying client.

If that is not what the freelancer wants in the future, she needs to create a separate contract that clients agree to before she accepts the Upwork hire offer.

[wlyonsatl]

Amanda and Preston,

In my posts I could not have been clearer that an agreement on this subject needs to be commuinicated to and agreed to by the client BEFORE the contract is in place.

I'm sorry if that wasn't clear. I'm never sure how good the English reading skills are for other users of this message board, so sometimes I only realize afterward that there is room for misunderstanding.

[a_lipsey]

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Will L wrote:

Amanda and Preston,

In my posts I could not have been clearer that an agreement on this subject needs to be commuinicated to and agreed to by the client BEFORE the contract is in place.

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100% agree. 

Also to add, as I'm still having my coffee and can't remember if this was covered, if a work for hire agreement/contract  was in place prior to the pics being taken, then the IP does belong to the client.  I did a quick search of IP law, and this does seem to be the standard interpretation.   

Back to what you said, best to clearly outline the expectation upon creating the contract. 

[a_lipsey]

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Will L wrote:

There will be nothing even remotely unethical about it, Amanda, as long as both client and freelancer clearly agree upfront to share ownership rights to a work. 

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To you, Will, it is not remotely unethical. Not to me.   Ethics are not hard and fast rules.  Ethics are evolving sets of standards.

Clearly the client's expectation was that these photos would be original and for their use only.   And rather than dealing with "what ifs"  Anela needs to deal with this client and their expectations.  And going forward she needs to learn more about the implications of IP rights.  

[anelatatlic]

Thank you. 

I got kind of messed up. I sign a special contract with some, and for this, I did not have any. So I was lost...kind of. Still, thanks for the support. It really means a lot to me. I am still learning btw and thank you.

[a_lipsey]

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Anela T wrote:

Thank you. 

I got kind of messed up. I sign a special contract with some, and for this, I did not have any. So I was lost...kind of. Still, thanks for the support. It really means a lot to me. I am still learning btw and thank you.

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I would just deal as sensitively as possible with this client, and then make some standard language and put in your process you don't move forward until that is agree with each client. 

I had an issue in my process come  to light last week, and I instituted a new rule in my contracting process because of it.  None of us knows everything. We are all discovering things about our individual businesses as we go along, refining practices each time we learn something new.  In your shoes I might do what I can to appease this client, and then institute specific language about ownership that must be agreed to prior to working for each client, moving forward.  Hope that helps! 

[wlyonsatl]

Anela,

One sure thing is that you will never stop learning on Upwork.

And you'll usually find friendly people on this message board to help you work through problems.

Usually, but not always.