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jmeans345
Community Member

Rights to artwork?

Hi there,

I am fairly new to upwork and have recently gotten my first commission. I am curious what the legal relationship between artist and client is. I've been commissioned to do 32 illustrations for a series of books, but does that mean my client owns the rights to the artwork once all the work is said and done, or do I retain rights? What are the terms and conditions for redistribution? Are these things that can be established one you are chosen for the job? I havent seen anything regarding royalties on any my previous proposals. Any help or elaboration would be much appreciated.

-Jaz

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tlsanders
Community Member

The default terms at Upwork purport to make everything work for hire, meaning that the client owns them and can do anything with them and you can't even use them as samples.

 

However, you and your client are free to agree on whatever terms you like--you just have to make them explicit in order to override that default clause. 

 

There are ways to protect both of your interests. For example, I typically purchase copyrights from a book illustrator, but grant the illustrator a perpetual, irrevocable right to use the artwork as samples, in marketing materials, and showcases of their work such as exhibits.

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tlsanders
Community Member

The default terms at Upwork purport to make everything work for hire, meaning that the client owns them and can do anything with them and you can't even use them as samples.

 

However, you and your client are free to agree on whatever terms you like--you just have to make them explicit in order to override that default clause. 

 

There are ways to protect both of your interests. For example, I typically purchase copyrights from a book illustrator, but grant the illustrator a perpetual, irrevocable right to use the artwork as samples, in marketing materials, and showcases of their work such as exhibits.

How would one go about overriding that default clause?
Is it something the client needs to adjust in their job post?
Is it something I need to explain in the proposal?
Is it as simple as clarifying what we want through messages?

Also, does it make sense for me to raise my price to account for the rights themselves?

Im curious what the best course of action is so that everyone ends up happy.


@jmeans345 wrote:

How would one go about overriding that default clause?
Is it something the client needs to adjust in their job post?
Is it something I need to explain in the proposal?
Is it as simple as clarifying what we want through messages?

Also, does it make sense for me to raise my price to account for the rights themselves?

Im curious what the best course of action is, so that everyone ends up happy.

 

I personally don't know the logistics of this as far as legalities go, but I do think you'll need to mention it in clear legal terms before the client hires you.

 

You won't override the default clause as part of your project here on Upwork; Upwork will retain this stance, it's their policy. Rather, it would be your own agreement with the client, following legal processes. This will not be something Upwork will be involved in, as far as I know (someone correct me if I'm wrong about that). So if push came to shove and you did something wrong in the process Upwork wouldn't protect you. They don't function in a legal entity in that way. Again...corrections are welcome if I'm wrong but Upwork has given their stance on who owns rights to work.

 

Personally I'd ask an attorney just to be on the safe side, I'd never rely on what somebody on the internet told me about it.

 

As far as raising your price accordingly, that will be your call and you will simply need to find clients who are amenable to your price bids. 

 

I would NOT wait to have the job in hand and try to explain it all via messaging; that would be disingenuous, IMO.



Melanie H wrote:

 

You won't override the default clause as part of your project here on Upwork; Upwork will retain this stance, it's their policy.

 

This isn't actually true. The default contract terms are optional, and are superseded by specific contract terms agreed by the parties.


Tiffany S wrote:

Melanie H wrote:

 

You won't override the default clause as part of your project here on Upwork; Upwork will retain this stance, it's their policy.

 

This isn't actually true. The default contract terms are optional, and are superseded by specific contract terms agreed by the parties.


This is exactly what I meant...unless I'm misunderstanding you. The client and freelancer need their own binding contract. It isn't a changed UW policy. It is a separate contract which, if done legally and correctly, would protect the OP's rights. But if not...If it's just some casual written agreement and there are loopholes,UW would not uphold or help if push came to shove because their policy is their policy and anything intended to override that is no longer their responsibility.

 

So.if the OP wants his rights actually protected in the way he has described, he will need a correctly executed legal contract and IMO he definitely needs to speak to a.lawyer about it. If an I is not.dotted or a T is not crossed, UW won't help, so OP needs to do this in an official way rather than trusting that just communicating these wishes will be binding in any way, including of the communications happen through UW channels.

 

Hope that made sense. OP...lawyer up rather than just asking people on an internet forum. JMO.

Jasper,  initiating a contract b/w FL and buyer that covers all aspects of the job + use of your art (or words) within your own portfolio and on your website and/or on LI, and other venues can and should be covered in your client specific contract.  When both you and client agree to and sign the contract it supersedes the contact U has in place.

florydev
Community Member

I am not a lawyer, I am pretty sure you could not get one to answer because they would want to be paid to give their advice, but I can say I do not agree with that this is considered Work for Hire, we are not employees.  

 

In the Terms of Service, here: https://www.upwork.com/legal#optional-service-contract-terms

Under 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.

 

We are also required by the Terms of Service to provide documents assigning IP:

Freelancer will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Freelancer’s signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Freelancer.

 

But the most important part is at the TOP:

Users who enter into a Service Contract on the Site with another User are free to agree to these Optional Service Terms in whole or in part, or to agree to different or additional terms for their Service Contract(s)

 

In fact this whole bit is called optional and the way I read it is more like it is the default terms of the contract if you don't have others.  It sounds very much to me like you could suggest a different contract with your client to retain Intellectual Property rights.  What that would look like would be a good question for a lawyer...I hear you can find them on Upwork.

 

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