A client found a graphical artist freelancer online, which is located on the other side of the globe. The freelancer finished the work and his end product is an Adobe Photoshop file, which is sent to the client. The client than incorporates this file, (possibly with other files), to create his end product -> image. The client does not resell the original item freelancer sent, nor does the client own it.

If there is ever a DMCA complaint by the freelancer, how can the client prove, that he/she indeed made a deal with the freelancer? What kind of licence must the freelancer transfer to the client? How do you transfer it?

This seems such a common scenario and one would expect there is a template for such licences. Yet, google is kinda vague on the topic.

  • This is what contracts do. If the freelancer and company didn't create one, that's a big legal mess for them to deal with. If they did, the question makes no sense. – Nij Feb 5 '18 at 3:38

The client will have to rely on their evidence that they have a contractual arrangement with the freelancer to create the thing, if they don't have a license for the product. Permission to use the freelancer's stuff is required, which could be in the form of an explicit license, or an implicit license arising from the fact that the client paid the freelancer to create the thing (which implies "and let us use it", though this would have to be sorted out in court). Suppose for example you have an exchange of emails where you say "We'd like an X", and he says "I can do that for $N", you agree, and you pay him. That is sufficient to establish his permission for you to use the thing. Signatures for such agreements are really not required: what's needed is evidence that there was an agreement in the first place.

As for DMCA takedown, freelancer files a notice and asserts the item was used without permission, then client can file a counter-notice. At that point, freelancer has to either file suit, or else the allegedly infringing material gets put back up. Client only has to prove something in court, when being sued by freelancer. Emails, for example, showing that there was an agreement would be useful – if you have no proof whatsoever that you even had such an arrangement, that would be a bit of a problem.

In general, if a person wants to make use of and distribute stuff created by another person (where the other person would hold the copyright), it is in the client's interest to protect themselves from lawsuit by getting a license to use the material. However, client probably needs to hire an attorney to draft a generic license agreement. Licenses like the CC licenses generally say "Anybody can use this, with certain conditions", which freelancer presumably would not agree to (and could be contrary to the interest of client). There are very many possible approaches: assign copyright to client; grant client a permanent exclusive license to us in any way they want; grant client a nonexclusive license to use in a very specific way for a couple of years, etc. Essentially, there is not and cannot be a one size fits all approach to restrictive licenses.

  • Thanks. That was helpful. I've researched various websites terms and conditions that match freelancer-client use case. But one big problem still exist. How does freelancer grant licence permission over the internet (email). Does he have to physically sign an agreement end send it via regular mail, or does scanning it, and sending it over email suffice? Notary authentication also comes to mind, but I have no idea how to execute it in practice for long distance work relations. – sanjihan Feb 4 '18 at 23:29
  • An email that says "yes, you can use my pictures for a dollar" or even "yes, you can use my pictures as long as you credit me" is a valid license agreement. Terrible for the copyright holder, yes, but a license nonetheless. – Nij Feb 5 '18 at 3:45
  • How about if the freelancer has a specific email, just for freelance work. something like: jc@gmail.com and the freelancers real name is Johnny Cordova. How is email from jc@gmail.com of any use in this case? The connection between email and the freelancer is very blurred and I find it hard to believe that the clients testimonial that jc@gmail.com belongs to Johnny Cordova suffices, if the freelancer says otherwise. – sanjihan Feb 5 '18 at 8:56

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