Retaining some of Intellectual Property rights as a creative seller

[formnlicht]

Dear fellow freelancers,

I am an interior and lighting designer, and it can happen that I work for other designers through Upwork. I would like to include what I design here on Upwork in my design portfolio, website and social media, but I have noticed that unless stated otherwise, all IP rights belong to client after the payment is completed. Do you have any clause to include in the contract, so that I can prevent my clients to showcase my designs under their own name or to encourage them to make reference to me anytime they present or publish a building/space/visual that is fully or partially designed by me?

Thanks a lot in advance for your comments and tips!

Ehsan 

[petra_r]

You can request that of course, and have an agreement between the client and yourself (in writing) that says so. Upwork would NOT enforce such an agreement though.

I would expect you to lose many contracts over that though.

[formnlicht]

Hi Petra, and thank you for your reply. How can I request that, or better to say where can I include that request? As far as I know, I am not able to offer a contract to client on Upwork and all I can do is to accept the contract the client offer me. Thanks!

[petra_r · Accepted solution]

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Ehsan B wrote:

Hi Petra, and thank you for your reply. How can I request that, or better to say where can I include that request? As far as I know, I am not able to offer a contract to client on Upwork and all I can do is to accept the contract the client offer me. Thanks!

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It is something you discuss with clients right at the very beginning of the interview process so you are not wasting your and the client's time. You can then write an agreement (which is purely between you and the client, nothing to do with Upwork) and send it through messages. Note that this agreement doesn't replace anything in the terms of service other than the optional service terms. Everything about it is between you and the client and Upwork don't get involved in it.

[wlyonsatl]

Ehsan,

You're asking a legal question and should ask a lawyer how to handle this problem if you want a usable and reliable solution. This is particularly tricky when you could potentially be dealing with clients from more than 100 countries and their unique legal systems. 

Other than not allowing client and freelancer to agree to non-cash payments outside of Upwork's system and similar elements, there is little Upwork can dictate as to what you and your client freely decide to agree to in terms of licensing, intellectual property rights, etc. if you both agree Upwork's existing provisos in this regard are unworkable, insufficient, irrelevant, etc.

[tlbp]

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Will L wrote:

Ehsan,

You're asking a legal question and should ask a lawyer how to handle this problem if you want a usable and reliable solution. This is particularly tricky when you could potentially be dealing with clients from more than 100 countries and their unique legal systems. 

Other than not allowing client and freelancer to agree to non-cash payments outside of Upwork's system and similar elements, there is little Upwork can dictate as to what you and your client freely decide to agree to in terms of licensing, intellectual property rights, etc. if you both agree Upwork's existing provisos in this regard are unworkable, insufficient, irrelevant, etc.

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Agreed. OP is going to have to come up with a strategy to negotiate what they want and create a document with language that memorializes it. Some clients will be willing to go along with this, others will be interested in more of a cash-and-carry service using Upwork's standard language. 

[researchediting]

This sample agreement addresses common issues in the area of licensing creative work, including requesting attribution. (Once we replace Upwork's work-for-hire equivalence in the "optional" [default] contract terms, we may be technically licensing rather than selling our work.)

As others have noted, there is no guarantee that any one client or class of clients will like what you propose. The sample offers language to cover limited-use contracts, and implicitly suggests the most common of such cases—hence indirectly the ones likeliest to be familiar and perhaps palatable to professional clients.