Copyright and commission agreements
Delivering a commission is a working relationship between you, the artist or creator, and the other person or organisation, the commissioner. A signed document with terms both sides agree to formalises this relationship. You can suggest a written commission agreement is put in place before starting the work. Make sure your copyright is protected by it.
What is a commission?
An individual, company or public body may ask you to create a work for them. This is known as a commission. It could help you develop and publicise your work, and if you charge a fee, it will increase your income.
A commission effectively means you are carrying out work for a specific purpose. This could be:
- producing a work
- holding an exhibition
- contributing to a project or event
Commissioners could be public bodies like arts institutions or museums, or private curators and companies. They may also come from someone you know, like a friend, family member or previous customer.
How commissioning affects copyright
As the creator of a work, generally you will own the copyright, meaning you have certain rights around reproduction and distribution. You can share, give away or sell the copyright, but unless you do so, those rights legally remain yours.
This is also true if a work is commissioned. Under current copyright law, the copyright belongs to you, rather than the person who commissioned the piece or a third party the commissioner is acting for. The only exception is if you have signed an agreement that assigns the copyright to someone else or an organisation.
It’s important to cover what happens to the copyright of the work in your commission agreement, so that everyone is clear. We recommend that as the creator, you retain copyright.
Think carefully about what you sign. If possible, get legal advice.
What a commission agreement is
A commission agreement is a document which clearly details the terms of the work creation and payment. It’s agreed, dated and signed by the person commissioning the work and by the creator. Having one will protect you financially and help avoid disputes later.
The agreement is a formal contract, clarifying expectations and responsibilities on both sides. It should state who owns the copyright.
If no payment is involved
Even when there’s no payment involved, it’s helpful to have a written commission agreement. This makes sure everyone is clear on the:
- process of making and delivering the work
- ownership of the copyright of the work
- any permissions the commissioner has to use copies of the work
Having a commission agreement will protect your rights, and can reduce the risk of a copyright dispute later.
Museum and gallery exhibition loan agreements
These are not counted as commission agreements.
If there is no commission agreement
When there’s no clear written agreement, by default copyright belongs to the artist or creator of the work. However, it is not always straightforward. If there’s a disagreement, the circumstances around the commission would need to be reviewed, to determine whether the commissioner should in fact be the copyright owner.
Implied licence
The commissioner may believe there was an ‘implied licence’. This is when there’s no commission agreement but permission to use the work is understood to be implied, through circumstances or actions.
Find out about implied licences – on the UCL website
Equitable relief
The commissioner may seek ‘equitable relief’ so that they can be regarded as the beneficial owner of copyright. This may happen when copyright was not assigned in the commission agreement, but the nature of the commission makes it inequitable for the commissioner not to be copyright owner.
Read about an equitable relief case involving logo design – on the Pinsent Masons website
Disclaimer
The content of this article is not intended to be applied to individual circumstances. It is not legal advice, and is not a substitute for independent legal advice.