When a work is commissioned from an author, the latter remains the owner of the intellectual property rights in the work, even if ownership of the object itself is transferred to the commissioning party. For example, if a play is commissioned by a theatre or a sculpture by a company for decorative purposes, the author of these works retains his copyrights.
This situation, which concerns all intellectual property rights, may clearly be awkward for the commissioning party of the work, which consequently does not have the copyright on the commissioned work and will, therefore, have to obtain the author's authorisation for any use other than that initially agreed (for example, to publish a photograph of the work).
The commissioning party of the work and the author may, therefore, agree that the rights in the work are transferred to the commissioning party. The situation of the commissioning party can be rather awkward, which is why the legislator sometimes provided for sufficiently flexible procedures for the transfer of rights to the commissioning party of a creation to which intellectual property rights apply.
As such, as regards copyright, the contract must meet certain conditions in order to be valid (see below). In addition, this contract must be clearly written since, in the event of doubt, the judge will give priority to the interpretation most favourable to the author.
Condition: a written contract is necessary
If the work is made for a customer whose activity is of a non-cultural or advertising nature, it will be sufficient for the author and the customer to expressly agree in writing that the copyright is transferred in full to the customer (with the exception of moral rights, which cannot be transferred in full).
The activity of the commissioning party must be in the non-cultural or advertising sector and the commissioned work must be intended for that activity.
However, it is not always easy to distinguish between what is part of the cultural sector and what is not.
Examples:
- a website commissioned by a bank;
- commissioned photographs to illustrate a restaurant's menu.
Additional conditions
When the work is commissioned as part of a cultural activity, other conditions apply.
Examples: a show commissioned by a circus; a sculpture commissioned by a museum.
