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Very important, Copy right, intellectual property rights and moral rights


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Posted (edited)

 

Read if you don't want to end up paying thousands of dollars for what you have purchased in Fiverr. 

Very important and very dangerous if you ignore it. 

 

to any buyer, be very cautious about what you buy; if it says in a gig, "commercial use" , it means you only have a non-exclusive licence to use the Work (that you have paid for it), it means the creator can sell the Work (which you have paid for it) to as many people as he/she wants. 

 

You need to draft

1. A licence aggremnet

or 

2. An Assignment of intellectual property rights 

 

1. Licence 

You either need to draft a licence agreement:

Irrevocable, Worldwide, Exclusive, perpetual, sublicensable (through multiple levels of sublicensees) licence.

With the above option, you are not still the owner. 

2. Assignment of intellectual property rights 

You will become the owner when you draft an assignment of intellectual property rights. 

 

3. Wavier of moral rights 

When you go with any of the above options, don't forget to ask for all moral rights to be waived (available for some countries) and a moral rights consent. 

 

4. Source file 

Be very clear about what source file you want. 

Just saying that you want a source file is unclear; mention what type of file you want. 

 

5. "Work for Hire" myth. 

"Work for hire" agreements are not working in Fiverr; it is not acceptable in many countries and the USA; it only covers a few categories of works.

 

If you have any questions, don't hesitate to ask me. 

Best Regards 

Edited by ms2468
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5 hours ago, ms2468 said:

You need to draft

1. A licence aggremnet

or 

2. An Assignment of intellectual property rights 

 No, you can not. To sign those agreements you need to share names and address and contact details and that is not allowed on fiverr. On top of that all those points are covered by fiverr TOS. 

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10 hours ago, ms2468 said:

if it says in a gig, "commercial use" , it means you only have a non-exclusive licence to use the Work (that you have paid for it), it means the creator can sell the Work (which you have paid for it) to as many people as he/she wants. 

As per Fiverr's Terms of Service, once the order is completed and paid for (as in, not cancelled for any reason), all the rights go to the buyer, unless otherwise specified in the gig description.

Of course, you have to pay attention to what you're buying; for example, if what you're buying is a customized template (like a template video where your company name and logo will be added), the seller can customize the same template for another buyer. It won't be completely same as the customized template that you got, because it will have the company name/logo/whatever of someone else, but the template itself will be the same.

Monetary damage typically happens when a seller sells you stolen goods (like a logo they copied from the internet and adjusted slightly) and you use it for your business; to avoid that, thoroughly check the delivery to ensure that it's not already in use somewhere.

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Posted (edited)
15 hours ago, catwriter said:

all the rights go to the buyer, unless otherwise specified in the gig description.

This can't be accurate. You always retain the right to use it for portfolio reasons - otherwise Fiverr would not be allowed to automatically add it to your gig gallery, and you wouldn't be able to show past work to future clients at all. Since Fiverr, by default, adds your delivered work to your gig gallery, either they are breaking their own copyright rules, or the buyer does not get "all rights". All rights means all rights, including the right to be the exclusive distributor of said work, which is not the case if somebody else is able to show the work to others.

Edited by visualstudios
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Posted (edited)
10 minutes ago, visualstudios said:

This can't be accurate. You always retain the right to use it for portfolio reasons - otherwise Fiverr would not be allowed to automatically add it to your gig gallery, and you wouldn't be able to show past work to future clients at all. Since Fiverr, by default, adds your delivered work to your gig gallery, either they are breaking their own copyright rules, or the buyer does not get "all rights".

You are confusing things. It is a work of your creation and that is why you can show it in your portfolio but you gave the commercial rights to the client. Assigning the commercial rights does not mean that you are recognizing the client as the creator of that work, you are only assigning the rights so that they can commercialize it. If you want to sell the same work to other people you have to clarify that it is a non-exclusive commercial license agreement, otherwise it should be. This is already covered by Fiverr and if you do not want to grant an exclusive commercial license you just have to clarify it in the description of the GIG.

Edited by maezma85
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Posted (edited)
5 minutes ago, maezma85 said:

You are confusing things. It is a work of your creation and that is why you can show it in your portfolio but you gave the commercial rights to the client. This is already covered by Fiverr and if you do not want to grant an exclusive commercial license you just have to clarify it in the description of the GIG.

I'm not confusing anything. I was replying to someone stating that the buyer gets "all rights". All rights include the right to not have the work displayed by anybody else for any reason without permission. If you have the right to show something in your portfolio, the buyer does not get "all rights". They are missing the "exclusive distribution and display" right, by definition.

There are indeed agreements where you grant all rights (usually under NDA's), and in that case you are not able to show the work, claim you even worked on it, etc. It's as if you've never worked on it. That's what giving up "all rights" means. Attribution is a right. If you can claim anything as "my work", then you didn't give up "all rights" to it. "All rights" and "commercial rights" are totally different things. By default, you give up commercial rights to the buyer. But you don't give up "all rights".

Edited by visualstudios
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Posted (edited)
7 minutes ago, visualstudios said:

I'm not confusing anything. I was replying to someone stating that the buyer gets "all rights". All rights include the right to not have the work displayed by anybody else for any reason without permission. If you have the right to show something in your portfolio, the buyer does not get "all rights". They are missing the "exclusive distribution and display" right, by definition.

There are indeed agreements where you grant all rights (usually under NDA's), and in that case you are not able to show the work, claim you even worked on it, etc. It's as if you've never worked on it. That's what giving up "all rights" means.

And it is thus, it has all the commercial rights but not of adjudication of the work. When you present a work in your portfolio you are not profiting economically with its distribution, you are only showing your work because the commercial license does not mean awarding the creation to the buyer. Those types of licenses that you are mentioning are special licenses and it is also something that must be agreed and clarified. Fiverr covers business licenses, not those kinds of special licenses.

Edited by maezma85
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Posted (edited)
3 minutes ago, maezma85 said:

And it is thus, it has all the commercial rights but not of adjudication of the work. When you present a work in your portfolio, you are not profiting from it, you are only showing your work because the commercial license does not mean awarding the creation to the buyer.

Thereby you didn't give up attribution rights, since you can claim it was your work. Therefore you didn't give up "all rights", as was claimed on the post I was replying to. You give up commercial rights by default, you don't give up "all rights".  That was my point: commercial rights != all rights. You are the one confusing things, not me.

Edited by visualstudios
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Posted (edited)
4 minutes ago, visualstudios said:

And it is thus, it has all the commercial rights but not of adjudication of the work. When you present a work in your portfolio, you are not profiting from it, you are only showing your work because the commercial license does not mean awarding the creation to the buyer.

No, you are confusing because if you had read the Fiverr TOS you would not be proposing this type of special licenses because you would know that Fiverr does not interfere with special licenses.

Edited by maezma85
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Posted (edited)
8 minutes ago, maezma85 said:

No, you are confusing because if you had read the Fiverr TOS you would not be proposing this type of special licenses because you would know that Fiverr does not interfere with special licenses.

Please don't insult me. I've read the TOS several times. I'm not proposing anything. I'm stating, quite clearly, that all rights means all rights, including the right to exclusive distribution and public display of said work. Since when you sell you retain the right to show the work in your portfolio by default (unless otherwise specified and agreed to), you're not giving up "all rights". End of.

Edited by visualstudios
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Just now, visualstudios said:

Please don't insult me. I've read the TOS several times. I'm not proposing anything. I'm stating, quite clearly, that all rights means all rights, including the right to exclusive distribution. Since when you sell you retain the right to show the work in your portfolio, you're not giving up "all rights". End of.

Dear partner,

You are confusing the "commercial" rights of a work with intellectual property. It is not an insult to tell you that you should read the TOS because you clearly do not understand the difference between intellectual property and commercial rights.

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Posted (edited)
4 minutes ago, maezma85 said:

Dear partner,

You are confusing the "commercial" rights of a work with intellectual property. It is not an insult to tell you that you should read the TOS because you clearly do not understand the difference between intellectual property and commercial rights.

1) Don't call me dear, or partner. 
2) Again, not confusing anything. I was responding to this sentence: "As per Fiverr's Terms of Service, once the order is completed and paid for (as in, not cancelled for any reason), all the rights go to the buyer, unless otherwise specified in the gig description." This does not distinguish between "commercial rights" and intelectual property rights. I understand the difference perfectly well. TOS don't make that distinction, therefore when they say "all rights", it must be reasoned it applies to both. And that is false. Conclusion - the TOS are written incorrectly. They should state "all commercial rights go to the buyer" instead.

Edited by visualstudios
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Posted (edited)
5 minutes ago, visualstudios said:

1) Don't call me dear, or partner. 
2) Again, not confusing anything. I was responding to this sentence: "As per Fiverr's Terms of Service, once the order is completed and paid for (as in, not cancelled for any reason), all the rights go to the buyer, unless otherwise specified in the gig description." This does not distinguish between "commercial rights" and intelectual property rights. I understand the difference perfectly well. TOS don't seem to make that distinction, therefore when they say "all rights", it must be reasoned it applies to both.

I'll call you whatever I want as long as I'm not insulting you, do you understand? Is it forbidden to say "dear" or "partner" somewhere? The only thing missing is that you give me directives of what I should call you. That you do not understand the differences of the TOS does not mean that they do not exist. 

Edited by maezma85
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It's gettin' personal guys. Let's get back to the brass tacks of who owns what parts of the delivered items.

https://www.fiverr.com/terms_of_service#ownership
In the final paragraph of the Ownership section: "and the Seller waives any and all moral rights therein"

I dunno about everywhere, but in Canada at least, it is an option for an Author to waive their moral rights.

https://www.heerlaw.com/moral-rights-copyright-law

"Moral rights can, however, be waived in whole or in part at the discretion of the author who holds the rights. This waiver will extend to all entities licensed or otherwise permitted to use the copyrighted work. Once moral rights are waived, they cannot be reacquired by the author."

By putting it into the ToS, and an artist agreeing, then by promissory estoppel, a buyer can argue they have the option to decline attribution or portfolio posting by the artist. I'm not a lawyer, so I can't guarantee that's how it would go, but it would probably be easy to get help from Fiverr's lawyers else the sweater starts coming undone.

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Posted (edited)
24 minutes ago, moikchap said:

It's gettin' personal guys. Let's get back to the brass tacks of who owns what parts of the delivered items.

https://www.fiverr.com/terms_of_service#ownership
In the final paragraph of the Ownership section: "and the Seller waives any and all moral rights therein"

I dunno about everywhere, but in Canada at least, it is an option for an Author to waive their moral rights.

https://www.heerlaw.com/moral-rights-copyright-law

"Moral rights can, however, be waived in whole or in part at the discretion of the author who holds the rights. This waiver will extend to all entities licensed or otherwise permitted to use the copyrighted work. Once moral rights are waived, they cannot be reacquired by the author."

By putting it into the ToS, and an artist agreeing, then by promissory estoppel, a buyer can argue they have the option to decline attribution or portfolio posting by the artist. I'm not a lawyer, so I can't guarantee that's how it would go, but it would probably be easy to get help from Fiverr's lawyers else the sweater starts coming undone.

Hmm, in my country, for example, moral rights, unlike property rights, cannot be assigned or prescribed, but we should see what the US law says about this because Fiverr is a company based there.

Edited by maezma85
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Posted (edited)
29 minutes ago, moikchap said:

 

By putting it into the ToS, and an artist agreeing, then by promissory estoppel, a buyer can argue they have the option to decline attribution or portfolio posting by the artist. I'm not a lawyer, so I can't guarantee that's how it would go, but it would probably be easy to get help from Fiverr's lawyers else the sweater starts coming undone.

Precisely. That being the case, it makes no sense for Fiverr to allow work to go on the portfolio by default. Yet they do. So, we have two options - either the TOS is written incorrectly, or Fiverr is breaking their own copyright rules on purpose.

This was my point all along. Fiverr does not act like you're giving up "all rights" when you sell - you retain the right to show the work. Regardless of what the TOS says, Fiverr's actions indicate this clearly. And actions speak louder than words. Even TOS words.

Edited by visualstudios
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7 minutes ago, visualstudios said:

Precisely. That being the case, it makes no sense for Fiverr to allow work to go on the portfolio by default. Yet they do. So, we have two options - either the TOS is written incorrectly, or Fiverr is breaking their own copyright rules on purpose.

I see! I think I owe you an apology because I did not understand what you meant and I made an incorrect interpretation of your message. In that case, being included in the TOS if they would be violating their own rules when they give you the option of a portfolio. In my country, moral rights cannot be assigned, sold or transferred in their entirety independently of the licenses.

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10 hours ago, visualstudios said:

You always retain the right to use it for portfolio reasons - otherwise Fiverr would not be allowed to automatically add it to your gig gallery

Buyer decides, when marking the order as complete, whether it's going to show in your live portfolio on Fiverr or not. If the buyer decides they don't want the work to be shown in the seller's live portfolio, all they need to do is uncheck the box on the delivery page. In other words, you don't always retain the rights to use it for portfolio reasons; you can only use it for portfolio reasons if the buyer allows it.

Quoting ToS here: "When purchasing a Gig on Fiverr, unless clearly stated otherwise on the Seller's Gig page/description, when the work is delivered, and subject to payment, the Buyer is granted all intellectual property rights, including but not limited to, copyright in the work delivered from the Seller, and the Seller waives any and all moral rights therein. "

And here: "Furthermore, users (both Buyers and Sellers) agree that unless they explicitly indicate otherwise, the content users voluntarily create/upload to Fiverr, including Gig texts, photos, videos, usernames, user photos, user videos and any other information, including the display of delivered work, may be used by Fiverr for no consideration for marketing and/or other purposes."

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Posted (edited)
8 minutes ago, catwriter said:

Buyer decides, when marking the order as complete, whether it's going to show in your live portfolio on Fiverr or not. If the buyer decides they don't want the work to be shown in the seller's live portfolio, all they need to do is uncheck the box on the delivery page. In other words, you don't always retain the rights to use it for portfolio reasons; you can only use it for portfolio reasons if the buyer allows it.

Quoting ToS here: "When purchasing a Gig on Fiverr, unless clearly stated otherwise on the Seller's Gig page/description, when the work is delivered, and subject to payment, the Buyer is granted all intellectual property rights, including but not limited to, copyright in the work delivered from the Seller, and the Seller waives any and all moral rights therein. "

And here: "Furthermore, users (both Buyers and Sellers) agree that unless they explicitly indicate otherwise, the content users voluntarily create/upload to Fiverr, including Gig texts, photos, videos, usernames, user photos, user videos and any other information, including the display of delivered work, may be used by Fiverr for no consideration for marketing and/or other purposes."

It is true what you say but it does not apply in the case of FIVERR PROs or TOP RATED SELLERS because they have an independent portfolio option. In addition, all of us who work with multimedia and / or graphic design have a portfolio of independent works. In any case, for a client to prevent someone from showing their work is something really unusual, there must be very few people who want to request that.

Edited by maezma85
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18 minutes ago, catwriter said:

including the display of delivered work, may be used by Fiverr for no consideration for marketing and/or other purposes."

So, they don't get all "rights". They don't get the right for Fiverr not to use the materials, for one.

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11 minutes ago, maezma85 said:

It is true what you say but it does not apply in the case of FIVERR PROs or TOP RATED SELLERS because they have an independent portfolio option.

They have that option, but it's for works that were done outside of Fiverr.

12 minutes ago, maezma85 said:

In any case, for a client to prevent someone from showing their work is something really unusual, there must be very few people who want to request that.

It's not that unusual on Fiverr. There are buyers who want to keep things confidential (not to mention many, many resellers who don't want anyone to know that they have outsourced their work to Fiverr sellers).

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1 minute ago, catwriter said:

They have that option, but it's for works that were done outside of Fiverr.

It's not that unusual on Fiverr. There are buyers who want to keep things confidential (not to mention many, many resellers who don't want anyone to know that they have outsourced their work to Fiverr sellers).

Not necessarily, some sellers don't have jobs outside of Fiverr.

I guess I'm lucky then. No one ever hid my samples and that I have as a client a well-known politician from the USA. I also like to show my work in a separate portfolio because Fiverr tends to deform the images and enlarge them when you see them from the thumbnails.

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