LEGAL QUESTION: When ordering art/design/logos is the gig already under WORK MADE FOR HIRE?

[gabrielgmoura]

Hi Fiverr community,



I have a legal question about ordering a piece of art.



Needless to say, most art negotiated here on Fiverr will be used with a commercial intent, either to be placed on a website, a book, a T-shirt… whatever the buyer may want.



In most real world business negotiations, a contract stipulates that the art (which can be a logo, a header, a character, etc.) transfers ownership to the employer because said employer paid to have such art made. For example, when Christopher Nolan is paid by Warner Bros. to write and direct THE DARK KNIGHT, Warner Bros. owns the screenplay/film, not Nolan (because there’s a clause in Nolan’s contract the determines that the art created belongs to his employer. This provision is known as WORK MADE FOR HIRE or simply WORK FOR HIRE, http://en.wikipedia.org/wiki/Work_for_hire



So my question is: when I hire a designer/illustrator/artist on Fiverr, is such provision already implied and understood, making it a valid legal contract? Or does the artist have to supply a separate release and agreement?



I don’t wanna be too anal about this, but this is important because without the provision or agreement, someone could pay for a piece of art, use it however they want, and then be sued because there’s nothing in writing that establishes the ownership of the work. Technically, this would constitute copyright infringement. If anything, the artist should at least sign a document stating, under penalty or perjury, that his or her work is wholly original.



So I was wondering what is the common procedure here when ordering art work? What kind of protection should buyers have in place?



Thank you in advance for the clarification.



Best,

Gabriel



PS. Sorry for being too anal and strict. I am an artist myself, and I have signed dozens of those contracts.

---

http://en.wikipedia.org/wiki/Work_for_hire,http://en.wikipedia.org,http://en.wikipedia.org/wiki/Work_for_hire//upload.wikimedia.org/wikipedia/en/thumb/5/50/American_White_IbisII.jpg/133px-American_White_IbisII.jpg,http://en.wikipedia.org,http://en.wikipedia.org//upload.wikimedia.org/wikipedia/en/thumb/5/50/American_White_IbisII.jpg/133px-American_White_IbisII.jpg

Wikipedia, the free encyclopedia

http://en.wikipedia.org

[c171zen]

As far as I know, when the order is finished this automatically means that the rights are transferred to the buyer.



P.S. Excuse me but what is this “anal” word and why you use it in this context?!

[laughingcrow]

Yes, the terms of service are very clear. Once the order is complete, all rights transfer to the buyer. Also, Fiverr maintains the right to use anything in the order for promotional work, if they feel like it.



If you discuss different terms during the negotiation or as part of the order, this does not apply obviously.



I also believe this means that if someone runs off with your work after they cancelled the order, and you find they are using it somewhere, you can send them a message that they are infringing on your intellectual property, since they are using your work without permission or paying for it. I have had good results on dealing in a civil manner with people who do this, but you may have to go as far as a “cease and decist” or even legal action to get your right.



Of course, for work that’s 5-10 dollars, that is likely non-feasible, and unscrupulous folk may bank on that fact.

[gabrielgmoura]

Thank you both for the information. That’s good to know.



@c171zen, though the word “anal” has a bad connotation is most circumstances, in this context, it means “too strict” or “by-the-books” – meaning someone like myself who’s investigating little details or following the rules.



@laughingcrow, thank you for pointing me in the right direction.



For future reference of others with the same question, here’s an excerpt from the TERMS OF SERVICE (as of August 2014):



"Ownership and limitations: unless clearly stated otherwise in the Gig description text, when the work is delivered, the buyer is granted all intellectual property rights, including but not limited to, copyrights for the work delivered from the seller and the seller waives any and all moral rights therein. "