Commissioned work

A commissioned work is a work of the mind created by an author at the request of a third party, the commissioning party, in performance of a contract for services. It is subject to no special ownership regime: Article L. 111-1 of the French Intellectual Property Code provides that the existence or conclusion of a contract for services or of employment by the author entails no derogation from the enjoyment of his or her right. The commissioning party who pays for the creation therefore does not acquire, by that fact alone, the copyright in the work.

The separation of the medium from the rights

The commission contract transfers to the commissioning party ownership of the physical object delivered, be it a painting, a model, a file or a manuscript. Article L. 111-3 IPC recalls that intangible property is independent of ownership of the physical object, so that the acquirer of the medium is vested with no right of exploitation. He or she may hold and display the copy in a private setting, but may not reproduce it, perform it in public or adapt it without authorisation. Ownership remains with the author, who furthermore retains his or her moral right in full.

The assignment of rights to the commissioning party

A commissioning party wishing to exploit the work must obtain an assignment in writing complying with Article L. 131-3 IPC, which requires that each of the rights assigned be separately mentioned and that the field of exploitation be delimited as to its scope, purpose, place and duration. The blanket assignment of future works is void under Article L. 131-1 IPC, which prohibits providing in a framework agreement for the assignment of all works to come. The author’s remuneration must in principle be proportional to revenue, a lump sum being permitted only in the cases provided for by Article L. 131-4 IPC. The development of software on commission is not exempt from these rules, the statutory vesting of rights applying only to the employer of an employee. The courts refuse to infer an implied assignment from the mere payment of the commission price or delivery of the work, which exposes a careless commissioning party to an infringement action.

The special case of advertising commissions

Article L. 132-31 IPC establishes a presumption of assignment for commissioned works used for advertising: the contract between the producer and the author entails, unless otherwise stipulated, assignment to the producer of the rights of exploitation in the work, provided it specifies the remuneration due for each mode of exploitation according, in particular, to the geographical area, the duration, the size of the print run and the nature of the medium. This presumption, being a derogation, is construed strictly and does not extend to non-advertising commissions.

Key points

Commissioning and paying for a work confers only ownership of its medium, never the copyright. Only a written assignment, setting out the rights, modes of exploitation, territory and duration, allows the commissioning party to exploit the work. Before distributing a creation made by a contractor, the existence and scope of that assignment should be checked and, where necessary, regularised, because exploitation without rights constitutes infringement.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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