I am looking to hire someone through Elance.com to ghost write for me. My concerns are:
1) WIll I own the copyright of work they create for me through elance?
2) Could this person file for unemployment against me after the job ends?
Elance has a pretty clear terms of service, which says that all work becomes the copyright of the person buying it. The TOS also offers an Independent Contractor Agreement clause. Also, my checks/credit card say "ELANCE" rather than the name of the providers.
Based on all this, I feel fairly secure, but I wanted professional input. Will elance's service agreement stand up as I understand it? Here is the direct link to their agreement:
Intellectual Property Law Attorney
in short, you need to retain a lawyer to look at this for you---this is not an insignificant amount of legal work.
1 lawyer agrees
Intellectual Property Law Attorney
The Copyright Act defines what is a "work for hire" in 17 USC 101. You cannot change the statute by private agreement. Generally what is done on elance is NOT a work for hire, despite the agreement expressly stating it is. However, the usual elance written agreement assigns copyright to the parting paying, so generally when you use elance you will obtain the copyright. It is doubtful that the Client will be deemed the author despite the express language saying so.
The specific wording is quite clear:
Ownership of Work Product and Intellectual Property
Contractor agrees that the Work Product is work made for hire. If any Work Product does not qualify as work made for hire, Contractor agrees that, upon Contractor’s receipt of payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Contractor has any Intellectual Property Rights to the Work Product that are not owned by Client upon Contractor’s receipt of payment, Contractor hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, Contractor retains no rights to use, and agrees not to challenge the validity of Client’s ownership in, such Intellectual Property Rights. Contractor hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. "
So, to answer your specific question, it seems the elance agreement will fail in certain respects and work in other respects. If you need the precise detail as to the elance agreement you, as "Client", and the creator, as "Contractor", signed, then you need to hire an attorney. We cannot give you specific advice as to your agreement here, as you are not a client. We can only give general advice and inform you that you need to engage an attorney for specific advice.
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