Copyright Question?!

[originalh]

Hi Guys,



I have just found a gig and has an extra for copyright ownership. Because of fiverr’s buyer protection policy do I really have to get this extra to own the copyright? I often outsource on fiverr and sell the work on so this is a point I need to be careful about.



Thanks

[kuzzmedia]

I would like a definitive answer to this question also. Who owns the copyright? The seller or buyer? Does it depend on what’s declared? Is there an automatic law/rule?



I’d like to know as well.

[empowerim]

buy the extra gig for the copyright claim as the seller has clearly stated this. If you dont and the seller finds out …well it’s best not to find out what might happen

[beatcraigslist]

Its a way for the seller to make a few extra bucks, but Madmoo’s answer is spot on. You can buy to own, or use as is and risk him giving you greif later if he finds out. How much grief he can really give I couldnt say.

[twistedweb123]

Madmoo is correct, and if you wish to own the copyright, you should pay the extra as specified by the seller.



Just because Fiverr is cheaper, doesn’t mean the “rules” change. It is the sellers prerogative to include copyright, or charge extra. If no copyright information is stated before purchase (such as in the extras, description, title etc), then, under Fiverr’s TOS, upon purchase, you own all rights. That means, if the seller waits until the gig instructions to inform you of copyright information - they are going about this incorrectly and actually breaking TOS.

[kuzzmedia]

@madmoo thank you for the clarification. That is good to know.

[lparziale]

Yes, good info here,

[bigbadbilly]

Unless you want to tip the seller Don’t pay the extra.



Once you specify what you want the graphic falls under contracted work and becomes yours.



That’s the law. No if’s and’s or buts.



Fiverr adds their clause as a protection against themselves. It’s a “House Rule”.



But, after the last topic I read and participated in regarding a topic close to this I contacted my lawyer because I have purchased logo’s here on Fiverr for my web site(s) and I purchased a design for two movies. So, I was a little nervous.



Anyhow. Point is.



The Graphic is yours Unless the seller is offering a graphic from their portfolio, and licensing it to you. Any work that you supply the characteristics to is yours. All copyrights. Given or not. What’s the difference? It’s because you are hiring someone to create a graphic for you. You are NOT paying someone to use one of their own graphics.



So. Like I said. It doesn’t matter what people’s gigs say.

If the seller asks you what you want the graphic to look like… then it’s yours.



They can’t go and change the law just because it suites them. They can’t ‘Grant you a limited license’ for something that has been designed to your specs and you paid for.



And. Yes. This is straight from the “Legal Officials” LOL

[twistedweb123]

Reply to @bigbadbilly:



How does this work? If you put this is a coding aspect, programmers often keep their source files and retain copyright/ownership for the work they have created - even if the specifications were given by the client.



If I create a logo, I own all rights to that logo, unless stated otherwise - regardless of who gave me specifications.



However, if I worked within a company and I created a logo - my company would own all copyrights to that work, because that is what they are paying me for. This goes far beyond logos and relates to everything - such as Newspaper Articles, Website Coding, Producing Food etc



In regards to Fiverr, although the buyer is paying you, he is not your boss or part of your company - so he does not own the copyright. Of course, if it’s not stated, under Fiverr’s terms of service, he does. But, if it is stated, the seller retains copyright and ownership. This is regardless of whether the item in questions was premade, or made to specifications.



I also cannot believe, as a fellow seller, you are actively telling buyers to not pay what the seller is requesting and short change them. It is that seller’s prerogative to charge what he wants.

[bigbadbilly]

@twistedweb123 - I am simply stating things the way they are.



It’s confusing. Yes.



In regards to Fiverr. Yes. Your buyer is your boss once you are hired.

Owning your own company is great. You are the Boss. However, when dealing with Clients they become your Boss until the job is complete. That’s how commerce works.



Programmers source code has nothing to do with the question posted here. Totally different area. But, when you create a program you are licensing it out for people to use, not selling the rights to the program. However, if you sell the rights of the source code to someone it becomes theirs, not yours.



There’s a difference between selling and licensing.



Now. The meat of the matter.



Graphics/Logos. This is the real area of this topic.



If I order a logo from you, and you say “What do you want on this?” I’ll answer: "A big chicken holding a piece of Pizza.“



Then you say: " I happen to have something you may like in my portfolio. Would you like that?”. I answer: "No. I would like you to create one for me."



As soon as you start a ‘Custom’ job, complete the custom job and sell the results of that custom job you are selling the rights to it. You have been ‘Contracted’ to create a logo/graphic for someone to their specifications. The transaction binds deal and the buyer has the rights. All of them.



However, if the buyer said: “Yes. I would like to use the graphic you have in your portfolio” then you are licensing a Pre-existing graphic of yours and you still own all the rights.



See the difference? Something out of your portfolio is yours, created yourself for yourself.



Something created to abide by someone elses specifications becomes a sale and you become a freelance artist thus selling all your rights with the sale.



Companies hire graphic artists all the time to run campaigns for them. Say… a 3 month contract. Design a graphic for McDonalds to use in their next campaign. When you complete the work and your 3 month contract is up you can’t tell McDonalds they can’t use the work the contracted you to do. It’s theirs to use. Lock. Stock and barrel.



Like I said in my earlier post.



It’s a confusing topic. When I participated in an earlier one I went and checked myself because I have purchased graphics here on Fiverr for Movie/Box art. I had to be sure that I did, indeed own all the rights. And I do.



Like it or not, straight from the mouth of the Evil Lawyers themselves. This is the law.



(And also because I figure it will come up… Fiverr has a section in their TOS about this stuff. Their rules are “House Rules” put in place to remove them from any potential problem in the future. But house rules are not the law, just Fiverrs policy to protect themselves)



I also need to add that I’m NOT trying to insult anyone or tell people not to order or pay for something. As a matter of fact I wrote in my earlier post to give the extra 5 to the logo creator if the work is great.



I’m simply stating the facts. There’s no hidden agenda here. I don’t sell logos.



It was just an interesting question that worried me so I had to find the real answer myself since I have purchased Logos here on Fiverr for commercial work.

[twistedweb123]

Ok, so you are stating that once the gig is purchased, a contract has been created between the the buyer and seller.



This is a fair enough argument, but, just like working with any contract, it can have clauses. By stating you do not own the copyright of the final piece (before the gig is purchased or contract is entered into), surely this is a clause of the contract - that is why Fiverr’s TOS state any copyright claims should be mentioned within the gig description, before purchase.



In regards to the programming aspect, I bought that in from personal knowledge. I understand licensing exists, but this is even the case when you create something specifically to specifications or ideas.



You cannot copyright an idea, however, you can copyright the interpretation. Samsung and Apple both have similar phone products available at the moment - yes there are legal battles going on, not because of ideas being used, but the interpretations being similar. This is the same with logos, whilst the user provides the idea - he is not actually creating it - the creation is your interpretation and you have the right to withhold copyright and the ability for the work to be resold. Sure, in conviction, this isn’t always practical. But in principle it is.



Otherwise, if you tell me you want “A big chicken holding a piece of Pizza.”, and I deliver, does that mean I can never create a logo involving a chicken holding pizza again, no matter the interpretation, as it was your idea when you purchased, and as you had hired me during the time you told me the idea, you completely restrict me from doing do?

[itsyourthing]

Reply to @bigbadbilly: Unfortunately, your “evil lawyers” are incorrect on this issue. Because by using Fiverr ®, the law is what buyers and sellers agree to be legally bound by, which is the Fiverr ® Terms of Service. By using this site, you agree to the ToS.



An individual can’t sign a contract (which is what one is essentially doing by using the Fiverr ® service) and then cite other or additional laws as the ‘rules’ they’re following.

[bigbadbilly]

Looks. Guys and gals. Once payment is done, any legal battles in the future have nothing to do with Fiverr.



The Fiverr TOS is to protect them. Basically, if anything ever goes to court Fiverr can not in any way be drug into the proceedings because of their “House Rules”.



@twistedweb123 - Yes. That means you can never use that Chicken again for someone else. Want proof? Make a McDonalds ‘Spoof’ logo, make it your business brand and see how long that lasts.



You know what guys? It’s no skin off my back whether you believe me or not. I couldn’t care one way or the other. I’m just simply giving information as I know it.



And I’m also sorry… but you can’t say a Lawyer is wrong. They are Lawyers.



I know this stuff because I need to.



My “Real Life” job is in the film industry. And like I’ve stated in other topics I’ve seen issues of this type come up.



I got nervous, I asked my Lawyer. A real Lawyer, not a Forum wanna-be, and I was told the way things are.



Period.



As much as things sometimes seem stupid, the law is the law… is the law.



And again. It’s doesn’t matter to me if every person reading this topic has something to say to try and refute what I just posted, or this or that. It doesn’t change anything.



The reality of it is that nobody will probably ever take anyone to court over a 5 dollar logo. But, if it ever happens, if the seller goes to court saying there was an agreement to not use the logo for anything but what I say… The Judge will ask if the “Art” came from a portfolio. The defendant will answer: No. I made it for the client. And that will be it. Judgment defendant.



Again. Believe me or not. I know I’m just a random dude posting here in a random topic. I wouldn’t take my own post at face value. Do you design Logos? Want your proof? Call a ‘Real’ lawyer and get the answer. Aside from that we are all just here giving our opinions.

[twistedweb123]

Mcdonalds is very different, their logo is trademarked - no one mentioned trademarked here. So yes, copying their likeness is against the rules, and this wasn’t about creating a likeness to a logo, it was about creating a logo with the same initial idea.



If the law is the law and can never be wrong, here is an article (written by lawyers) proving my exact point: http://www.lawontheweb.co.uk/Media_Law/Copyright_Law/Can_You_Copyright_an_Idea



You cannot copyright an idea, and thus, if you are not the one creating the final piece - the creator (unless an employee, or written into the work contract), has the rights to withhold copyright.



Fiverr avoids this sticky situation by deeming all work onsite as copyright provided to the buyer, unless stated otherwise. This cuts down on a lot of confusion and places these actions into the sellers hands. But this doesn’t change the fact, if the buyer states you need to pay for copyright - you indeed need to pay for copyright.



If you wish to get really pedantic, at no point are you, the buyer, paying the seller. You are paying Fiverr. Fiverr is paying the seller. This makes Fiverr’s “house rules” your working contract between buyer and seller - as the seller is acting as an agent of Fiverr. So, by placing an order, you are agreeing to their terms of service (which I’m sure has also been written by Lawyers, given Fiverr’s CEO is a lawyer) and their rules - stating, unless written otherwise, the work is provided to the buyer with all copyrights. However, if stated, it is not, and it is the sellers prerogative to sell these at an additional cost.



I find your whole tone attacking, and calling users, who are providing their opinions “Forum wanna-be” is totally off context and unnecessary.



Furthermore, encouraging users to not follow TOS and to undercut sellers is just down right rude - that’s just not your call to make or give.

[ozzieuk]

Section 11 Copyright, Designs and Patents Act 1988, First ownership of copyright.

(1)The author of a work is the first owner of any copyright in it, subject to the following provisions.

 

(2)Where a literary, dramatic, musical or artistic work [F1, or a film,] is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

 

(3)This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations).

 

http://www.legislation.gov.uk/ukpga/1988/48/section/11

 

In short: The author of any work is the owner of copyright unless is created during the course of his employment.

 

As a buyer you do not automatically assume copyright, there is a clause in the TOS but this can be waived by the seller at any time if they wish to do so and charge the buyer accordingly for that copyright to be transferred.

[originalh]

Hi Guys,



As far as I am aware if we are bound by the TOS and the logo designer or other graphic artist does not state anything about copyright then the buyer owns it. Sellers also have to abide by this TOS when they deliver work? Just would like to know if I am correct on this one…



Thanks

[twistedweb123]

Reply to @originalh: Yep, that is correct. They need to state in the description, before you order

[originalh]

OK, so in this case because it is an extra I am forced to but it should I want to own the copyright. However for another designer who does not state this I own the copyright.



Thanks

[originalh]

Thanks everyone for your help! I wasn’t trying to cause arguments but rather find the answer to my question 🙂 Prehaps we need some scenario examples in the TOS like OzzieUK gave?



Thanks again 😃

[bigbadbilly]

Guys. Believe what you want. I will make one final attempt to answer this. And then, like I said, You can believe what you will.



First.

@twistedweb123 - I wasn’t attacking anyone.



@oldbittygrandma, and @twistedweb123. The term Wannabe was used more for myself then anyone else. If you read the entire post you’ll see I was referring to myself.

bigbadbilly said: I know I'm just a random dude posting here in a random topic. I wouldn't take my own post at face value.

So I was attacking myself... which I don't mind. LOL

@ozzieuk - You've posted the copyright act but this does not apply when a person is hired to create something to someone elses specifications. The "Seller" in this case becomes employed by the buyer to create a graphic for the buyer. Once employed, and working on a piece of 'Visual Art' for the buyer, the result is the buyers property.

Again, please keep in mind that just because I write this... doesn't make it true.

Let's be honest here. Using Fiverr as the middle-man would 'Cloudy' things up a little bit. But in the end it would be seen as a ploy by any judge.

This whole topic is confusing. Law is confusing. Fiverr TOS Vs. Law can be confusing because like @twistedweb123 stated you're technically buying from Fiverr.

Now. Again...

My posts weren't meant to be offensive. I actually like debating stuff on here.
Sometimes, especially with complicated topics things can come off as insulting. But that wasn't my intent. Sometimes it just kind of happens. But the "Forum-Wannabe" remark was, in general saying you can't take forum authors at their word... And it was also aimed more at myself if you read on.
The really funny thing about all this is that we can all go on and on and post this, and copy that and paste it and keep this going forever probably.

Like I said in my last post. I'm just another writer here in this topic. My opinion, like all of ours, should not be taken to the bank without really checking. (If you feel the need to).

To get real answers, like I said, call a real life lawyer. This topic, for me was all about debating. Not insulting.

And to any I inadvertantly insulted.... My apologies. That wasn't the intent.

But sometimes, like when you send a Text message and the person get's a totally different meaning and feel than what you meant.... that's what can happen here.

[twistedweb123]

I think Jo pretty much hit the nail on the head:



"My advice is to pay for the gig extra, regardless of the posts above disputing that fact, then, and only then, can you be assured that should you outsource this seller’s work and sell it, you will have met the obligation of the seller, and be on safe ground. "



At the end of the day, you should meet the sellers requirements, just as they meet yours. All legalities aside, no matter your interpretation, not fulfilling the sellers requirements would just be bad practice, even if it doesn’t go to a legal setting, I’m sure a lot of sellers wouldn’t appreciate their work being used without consent, and could possibly take their own steps to get involved.



For example, imagine a logo designer creates a logo and the copyright is not purchased. All the seller needs to do, is run the image through Google, find the matches and determine the logo has been sold without permission or copyright. For the sake of a few dollars, no one wants a p*ssed off seller contacting the resellers customer directly, stating the logo was bought for $5. This is not something I would do, as I don’t create logos, but it’s a feesable situation

[bigbadbilly]

@oldbittygrandma

It’s no problem. I wasn’t offended by your quote. I know you’re just trying to keep the peace.



Like I said. I enjoy these little debates. And sometimes, things can be taken the wrong way… or even written the wrong way.



Nobody (Myself included) wants to be “That guy”.



I’m simply writing things the way I’ve been told them, and I keep saying if the need arises, check yourself to be sure and don’t take my word for it, or anyones really except a real world profesional. (That’s where the Wannabe term came in).



This is just one of those ‘Deep’ topics that can, at the drop of a hat have things written that to one may sound… ‘Attacking’. But when actually writing it out doesn’t feel attacking at all.



@twistedweb123 - Now THAT post above is something we can/should at least all agree on. Cheers.

[merileep]

I don’t read anyone really insulting anyone. But people seem to be taking points personally. I challenge you to consider this.

• It doesn’t matter who is right or wrong because the conversation is smart.
  
• Both sides have valid points that are well thought out and written. Right or wrong both sides have stated points that are written with a brain and not just babble.
  

• You should all be happy you have a forum where you can have a conversation that doesn’t read like a bunch of little kids fighting.

[ghostblogger]

You as a seller are in the employ of the buyer so the copyright goes to the buyer as far as the law reads (or as I read it ) or to the employer which once again is the buyer.



This is murky and if you want to retain rights as a seller you should trademark or copyright your works and not take a commison to do work for someone, otherwise it looks pretty clear who owns the rights. You are doing work for them, you are not selling them something. You are in their hire.



Just my two cents adjusted for inflation



In the case of written (including software and databases) theatrical, musical or artistic (including photographic) works, the author or creator of the work is also the first owner of any copyright in it. The only exception to this is where the work is made by an employee in the course of his or her employment.



Therefore at that time, if you commissioned someone to take photographs for you for instance of your wedding party, then you would be the owner of the copyright in those photographs. The commission though must have been undertaken for money or money’s worth that is equivalent goods or services.

[lparziale]

I am not a lawyer but I employ one to ensure my business has sound contracts and covers ourselves legally. In any lawsuit, what is in writing, including contracts especially, will be taken into account. Two things are correct in my humble opinion.

1. Work for hire does in fact mean that the person being hired does not own the work.
   
2. Contracts clearly state terms of the agreement, no matter the status of hire.
   
   
   
   With that said, both parties should be clear about their agreements and once someone hires or is hired, they then by default have agreed to those terms. If a seller has clearly stated they will grant copyright for an additional fee and you do not agree, then don’t hire them. Plain and simple.