Hiring Freelancers on Platforms – who owns the Copyright?

There are now many on-line platforms like Upwork and Fiverr where you can hire freelancers for a variety of different services. At Upwork amongst other things you can find web, mobile and software developers, as well as freelancers offering design, creative, data science, analytics, engineering, and architecture services. At Fiverr you can get voice over, logo design, social media, video and animation and other creative services. Such platforms make it easy to find and hire talent. However, in hiring such talent you need to clarify contractually who owns the intellectual property (copyright) in the work product that is created by the freelancer.

If you pay then you own, right? Wrong! Well under UK, EU and Swiss law the author is the first owner of the copyright. This means the person who creates the work owns the copyright i.e. the freelancer. Freelancers are not your employees, so copyright is not transferred to the client as occurs in an employment situation. Copyright can however be transferred through an assignment (transfer) in writing. The best practice is to include this in the service contract between the customer and the freelancer. However, if the contract is silent on who owns the copyright then it will remain in most cases with the freelancer. The law is very reluctant to imply any missing copyright assignment or licensing terms into a contract unless there are particular special circumstances.

So, what do the platforms say about ownership and transfer of intellectual property rights?

Upwork says it is up to the freelancer and the customer to agree terms in a service contract. Upwork does however provide an ‘optional’ services contract for its customers and freelancers. While it is ‘optional’ Upwork’s terms of service for the platform says that it applies automatically in the event that the customer and freelancer have not agreed other terms. Under the Optional Terms new intellectual property is assigned (transferred) to the customer by the freelancer and the customer gets a non-exclusive right to use the background intellectual property.

On Fiverr their terms of service govern the ownership/licensing of intellectual property rights. The customer owns all intellectual property rights including copyright in the work product (which is called a ‘Gig’ on Fiverr) unless otherwise stated by the freelancer. For commercial use, a freelancer will often require that the customer purchases a commercial use license for specified business and commercial purposes. For certain types of works e.g. voice overs, additional rights must be purchased to broadcast the work or distribute it through paid marketing channels e.g. commercial TV, radio, internet radio.

That all said nothing substitutes a direct service contract between the customer and the freelancer that clearly assigns the copyright to the customer or provides a license for a defined use. The platform’s terms of service are contracts between the platform and the user and do not in themselves create direct contractual relationships between the customer and freelancer. If there is a problem that cannot be resolved amicably between customer and freelancer you are reliant on the platform enforcing its terms of service against the other party to cause the transfer or license of copyright.

A recommended approach is to ask the freelancer to confirm in writing that it agrees to the platform’s terms of service concerning ownership/licensing of copyright for your project and that the freelancer undertakes to transfer/license all such rights to you as the customer accordingly. You should at least get an email or other electronic message to this effect from the freelancer and if you can get this signed (wet signature or electronically) then even better.

Kelly Logan

Founder and Managing Partner

kelly.logan@loganpartners.com

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