Freelance Designer transfer of copyright and exploitation rights

3 posts in this topic

Hello TT community!

I have a headache of a situation on my hands with a past client from hell who seems to want to continue to make my life difficult even after a year of us not working together. I'll jump into the back story quickly. I signed a contract with them back in 2019 but never got a copy of this contract with both our signature on it. It states this: 

Quote

Urheberrechte 

1 Soweit rechtlich zulässig, überträgt der Berater die Eigentumsrechte für jedes urheberrechtlich geschützte oder nach einem sonstigen Schutzrecht schutzfähige Arbeitsergebnis, das von ihm allein oder gemeinsam mit einer anderen Person im Zusammenhang mit seiner Beratertätigkeit für die Gesellschaft erstellt wurde, im Zeitpunkt seiner Entstehung an die Gesellschaft. Weiterhin überträgt er das ausschließliche und uneingeschränkte Nutzungs- und Verwertungsrecht an diesen Arbeitsergebnissen an die  Gesellschaft. 

2 Der Berater verpflichtet sich im Rahmen des Zumutbaren, alles Erforderliche zu tun,  um es der Gesellschaft zu ermöglichen, eine Registrierung oder einen sonstigen  Schutz des jeweiligen Rechtes zu erwirken. 

3 Mit dem nach Ziffer 4 dieses Vertrages vereinbarten Honorar ist die Übertragung aller  Urheberrechte und sonstigen Schutzrechte abgegolten.

 

Now a year later once we cancelled our contract because of issue with them not paying me for my work like we agreed. They're now emailing me asking me to remove my artwork I did for them on my portfolio website. They're saying they did not agree to allow me to use them as a reference  or for me to say I ever worked for them or designed anything with them. Keep in mind my website is based out of America and registered in America.

 

My question is this, is this legal under german law? I know there are strict german laws for artist about copyright like I can not legally transfer my copyright ownership or rights of use or exploitation (showing it in my portfolio to the public) right? Should I take down my portfolio page or do they not have any right to request me to do so?

 

Thanks for all the help please let me know if there's more information needed.

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Not that I am a lawyer, just a fellow freelancer...

I would comment

 

"Now a year later once we canceled our contract because of issue with them not paying me for my work like we agreed"

So the contract became void because of non payment. There is usually something written about what elements of the contract continue after termination.

 

"... the consultant transfers the ownership rights...". and " the exclusive and unrestricted right of use and exploitation "

You produced a design for the client and providing he paid for that design, the design belongs to him. You can not use it yourself as you are then exploiting what you sold to the client.

Now if he didn't pay for the item at issue, then the contract might not in itself be valid, so no rights were transferred, but that's a legal question.

 

" I know there are strict german laws for artist about copyright like I can not legally transfer my copyright ownership or rights of use or exploitation ".

Interesting. I was not aware of this in Germany. Could someone please elaborate.

However, it's likely that under American law you can transfer such rights. So again it becomes a matter of law, and usually the contract states the law under which is it written and shall be resolved, which is usually that of the client, so presumably American law. If the site is hosting material not owned by you, then they can simply issue a DMCA request to have it removed and your ISP will remove it or close your website. Of course you can argue the point about ownership.

 

" They're saying they did not agree to allow me to use them as a reference or for me to say I ever worked for them or designed anything with them ".

Did they specifically exclude this? In any case I would question if a company has a legal right to say person X is not allowed to state publically they worked for company Y. A company name is often subject restrictions, but if I write 'For a california based company run by Bill Gates who's name I am not allowed to mention' or similar wording then everyone knows what company you are referring to, but it's not making use of a trademarked name. Probably there is something written about this in the termination part.

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7 hours ago, scook17 said:

I am a fellow freelancer...

" I know there are strict german laws for artist about copyright like I can not legally transfer my copyright ownership or rights of use or exploitation ".

Interesting. I was not aware of this in Germany. Could someone please elaborate.

However, it's likely that under American law you can transfer such rights.

 

Indeed, under U.S. law, there can be a work-made-for-hire agreement that would constructively make the client the author so that the client owns the rights.  (See U.S. Copyright Office Circular 30 all about it)

 

Generally for a contract to be formed there has to be (a) an offer; (b) acceptance; (c) "consideration" (usually a money transfer).

 

Although the OP (Briw) signed the German-language contract, it would seem under U.S. law that a contract was not formed because no consideration was given to the OP by the other party to the contract.  In that case, the OP can argue there was a lot of talking but there never actually was a contract and the OP definitely owns the art. 

 

 

7 hours ago, scook17 said:

There is usually something written about what elements of the contract continue after termination.

 

On the one hand, that is a very good point.  On the other hand, this might not be an issue so much of a contract "terminating" as never having been formed in the first place.

 

Another contractual clause to look for: is there a choice of law provision?  Does the document expressly say German law controls? 

 

 

On 3/2/2021, 3:16:03, Briw said:

They're saying they did not agree to allow me to use them as a reference  or for me to say I ever worked for them or designed anything with them.

 

This is another can of worms.  It is different from using the artwork -- unless the artwork has their name all over it.  It's one thing to say "look at this art I made, it shows how talented I am" as compared to "look at this website I made for Coca-Cola", which is an implied statement that Coca-Cola hired you to work for them. 

 

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