Who Owns Copyright From Elance Outsourcing?

14 replies
Having an ebook made from a provider through Elance. Who technically owns the copyright to this book? Me? Or the Provider?

According to US Copyright laws it states:

Who Can Claim Copyright?
Copyright protection subsists from the time the work is created
in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who created
the work. Only the author or those deriving their rights
through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not
the employee
is considered to be the author. Section 101 of
the copyright law defines a "work made for hire" as:
1 a work prepared by an employee within the scope of his or
her employment; or
2 a work specially ordered or commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
an instructional text
• a test
• answer material for a test
• an atlas
if the parties expressly agree in a written instrument
signed by them that the work shall be considered a work
made for hire.

The provider is hired by myself. So as I take it I own the copyright to this product, correct? My work would fall under the "an instruction text" category I would believe.

Thanks,
Mike
#copyright #elance #outsourcing #owns
  • Profile picture of the author Steve Hines
    Hi,

    Having been on both sides of Elance, I can tell you that you own the copyright to the content that you paid someone to write for you.

    It's usually a good idea to make it known in the listing that part of your agreement is contingent on the fact that you retain sole ownership of the material, and that the ghostwriter is not allowed to use it.

    Even though you have the law on your side, you might find someone that tries to reuse the content they created for you. So to avoid quibbles over this, put it in writing when you list it.

    Best of Luck with your ebook...
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  • Profile picture of the author CDarklock
    Originally Posted by MikeE516 View Post

    Having an ebook made from a provider through Elance. Who technically owns the copyright to this book? Me? Or the Provider?
    Before you pay, he does. After you pay, you do.
    Signature
    "The Golden Town is the Golden Town no longer. They have sold their pillars for brass and their temples for money, they have made coins out of their golden doors. It is become a dark town full of trouble, there is no ease in its streets, beauty has left it and the old songs are gone." - Lord Dunsany, The Messengers
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  • Profile picture of the author Rob Whisonant
    The creator owns the copyright unless he or she assigns it to you. Research work for hire.

    Re's
    Rob Whisonant
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    • Profile picture of the author CDarklock
      Originally Posted by Rob Whisonant View Post

      Research work for hire.
      In the absence of an express written agreement, most freelance assignments still qualify as work for hire. And when a work is made for hire, the creator retains rights until consideration is exchanged. The absence of an express agreement does not preclude the work's status as "for hire."
      Signature
      "The Golden Town is the Golden Town no longer. They have sold their pillars for brass and their temples for money, they have made coins out of their golden doors. It is become a dark town full of trouble, there is no ease in its streets, beauty has left it and the old songs are gone." - Lord Dunsany, The Messengers
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      • Profile picture of the author kindsvater
        Is it a work for hire without an express written agreement as posted earlier? Such as an oral agreement?

        That is a common myth.

        US copyright law requires an express written agreement.

        See http://www.copyright.gov/circs/circ09.pdf

        17 United States Code Section 101: "A 'work made for hire' is .... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

        Without the express written agreement the person buying the material obviously, at a minimum, has an implied right to use it for some purpose. But try to change it or use it for other purposes and you could be on the losing side of an expensive copyright infringement lawsuit.

        For example, here is a recent case with Coca-Cola on the losing side where it failed to get this express written agreement for a World Cup song.

        Vergara v Coca-Cola Opinion

        Even the biggest companies in the world sometimes blow it.

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        • Profile picture of the author David Hooper
          The World Cup thing was a derivative work made from an already copyrighted song. Music licensing is totally different than what most people here are doing on Elance, but this kind of thing is important to know if you're dealing with sound recordings, such as bumper music or anything synced to a video.

          Have done HUNDREDS of projects on Elance and here are a couple of things I think are important to keep in mind...

          1. All projects are considered work-for-hire, meaning you own copyright once you pay for the work. You don't need an agreement for each project, because this is the agreement providers "sign" when they join Elance.

          Sometimes providers don't get this. I've had them ask to use the work elsewhere, put their name on it, etc. You COULD do this and still work the copyright, unless otherwise specified, but I don't recommend it. Let them write something else.

          2. If somebody has plagiarized what you buy from them, you can't use it. It's like a pawn shop loaning money on stolen goods. Not your fault, but it's your responsibility to stay within the law.

          There are, of course, a million other things to consider. For example, I once had a woman who wanted to use part of some academic work she had done for a project we hired her for. To me, it was too messy, since sometimes, academic work is owned by the university its done for.

          Bottom line-- if it's messy, I stay away from it. Not to make you paranoid, but having been in Federal Court for copyright infringement, I can tell you that it can and does happen to "normal" people and that it's a bitch!

          Hope this helps!
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  • Profile picture of the author Rob Whisonant
    Oh... And just because you paid for it... Does not mean you own the copyright. Way to many people think this when it's just not true. The creator MUST transfer the copyright to you... If not, you don't own the copyright.

    Here is a good right up on the subject.

    Work For Hire

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    Rob Whisonant
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    • Profile picture of the author MikeE516
      Coming from the site given here is what I gather:

      Do I Own the Work I've Paid For?

      Not necessarily. If a specially commissioned work doesn't qualify as a "work for hire," you may not own the work -- or even have the exclusive right to use it. While you may have implied license to use it, the scope of your rights will be unclear at best. One way to avoid this situation is to use an appropriate work for hire agreement.

      What is a Work for Hire?

      One way to acquire rights is by license. With a license, you do not obtain total ownership of the final work, but rather certain limited rights to use it. These limited rights can either be exclusive or nonexclusive. A license can further be defined -- or limited -- by territory, duration, or even media. As a rule, hiring parties prefer to obtain rights on "work for hire" basis (shorthand for "work made for hire"). With a work for hire, the hiring party steps into the shoes of the creator and becomes the author of the work for copyright purposes. With a work for hire, all of the attributes of copyright ownership -- including credit and control -- vest in the hiring party, not the creator.

      Important!
      There are only two situations in which a work for hire can exist. They are: (1) a work created by an "independent contractor," and a (2) "work prepared by an employee" within the scope of her employment.

      A. Works Created by Independent Contractors

      For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet:

      1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and

      2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and

      3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:

      (1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).


      Only problem I believe I could have is there was no signed agreement to a "work made for hire".

      Mike
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  • Profile picture of the author kindsvater
    Elance terms of service provide projects are works for hire and the paying client owns all copyright and the contractor being paid owns none.

    http://www.elance.com/p/legal/servic...contractor.pdf

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    • Profile picture of the author gigmaster
      ELance Terms of Service is not an "express agreement between both parties" as required by 17USC101. ELance cannot act as an agent for both parties. Although they state it in their TOS, it is legally unenforceable in the US.

      Also, Elance cannot know ahead of time the nature of the work being done. To qualify as a Work For Hire, the material must fall into one or more of 9 narrowly defined definitions.

      I write on Elance, and I have had issues like this come up, and I have won every time. Unless I specifically transfer all copyrights to the client, in writing and signed by both parties, and notarized, the copyrights remain mine. In the absence of a transfer, the law regards it as a Limited Mechanical License.

      Originally Posted by kindsvater View Post

      Elance terms of service provide projects are works for hire and the paying client owns all copyright and the contractor being paid owns none.

      http://www.elance.com/p/legal/servic...contractor.pdf

      .
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      • Profile picture of the author kindsvater
        Originally Posted by gigmaster View Post

        ELance Terms of Service is not an "express agreement between both parties" as required by 17USC101. ELance cannot act as an agent for both parties. Although they state it in their TOS, it is legally unenforceable in the US.
        Not correct. The TOS outline the requirements to be on the service and agreements as to projects obtained and provided through the service. By definition every project on Elance involves an express agreement between a buyer and a provider. It is the nature of how the service works.

        Originally Posted by gigmaster View Post

        Also, Elance cannot know ahead of time the nature of the work being done. To qualify as a Work For Hire, the material must fall into one or more of 9 narrowly defined definitions.
        Doesn't matter and completely irrelevant. The project agreement is between a buyer and provider which the buyer is paying to have prepared.

        Originally Posted by gigmaster View Post

        I write on Elance, and I have had issues like this come up, and I have won every time. Unless I specifically transfer all copyrights to the client, in writing and signed by both parties, and notarized, the copyrights remain mine. In the absence of a transfer, the law regards it as a Limited Mechanical License.
        None of this is correct. Feel free to post any court ruling you have obtained on this issue.

        If you are an Elance provider thinking you own the copyright for projects you are paid to prepare because there is no notarized document signed by both parties you should not be an Elance. Possibly, you are also defrauding the buyer. This is an unreasonable position no one would expect in dealing with a freelancer and violates the conditions for your use of the service. Feel free to post your Elance user name so this matter can be further addressed by Elance.

        As David Hooper said "Sometimes providers don't get this" and you can run into all types. It is a factor to consider when deciding who to hire. What is their reputation? Where are they located? The law may be on your side but if you are in Iowa and the rogue provider is in Russia there are logistical and practical problems.

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  • Profile picture of the author alambd1963
    Here I would like to place an example. Such as a book was written by a writer, then the govt paid money for this work. He the Govt is fully owned for this book. On the flip side the writer worked as a paying worker only. At the same way, If you placed an order to write a book & the writer write the book, you paid money. he worked for money only. So you are the owner of the book. But if you buy a ready made book, you are not the Owner of the book. so before buying & placing any order, you need to make clarify about this. Thanks.
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  • I think you are all nitpicking to much. I have order writing jobs and I own them. I paid I own them. I know you 99 dont' agree with that, but I don't care because I own them since I paid. You can nitpick all you want that is why live in such a mess no one has common sense anymore other then a few of us who everyone is trying to "get in line". Use some common sense people if you order something and you pay you own it.
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    soon people... Relax...
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