A curious copyright consideration on commissioned work

The lawyers in the UK have done something odd.  They’ve decided that if someone commissions a bit of work from someone else, the copyright of the work remains with the author unless the contract explicitly says otherwise.  The details are here.

It’s hard to imagine any circumstance in which X would pay Y to create an original work and not intend to acquire ownership.  So this is just a typical lawyer’s trick, designed to increase the income of lawyers by obscuring what was plain to everyone and forcing everyone to state in writing what everyone presumed already, on pain of enriching more lawyers.  I can’t stomach such things.

I’ve tended to state this explicitly in all the work I have commissioned, being paranoid, but I’ve written to all my people explicitly again.  What the US position is I do not know.

As a rule I only take ownership so that I am free to give it away, of course.


10 thoughts on “A curious copyright consideration on commissioned work

  1. You’re right that full copyright transfer is usually intended in the case of a “work made for hire”. But this is not a lawyer’s trick, it’s standard traditional copyright law. If the contract fails to mention transfer of copyright, even if it’s a work made for hire, then the commissioned author remains the “author at law”. In continental copyright (e.g. Germany, France) it’s different, because there the Anglo-American concept of copyright simply does not exist, although the term copyright is often used. There the commissioned author will always remain the author-at-law, no matter what, and will only license his work, i.e. transfer rights of use.

  2. The “author-at-law” and “work made for hire” concepts seem to be the major differences, but I can generally only speak for German and US law, because those are the only ones I know. In German law (like other continental laws) you cannot transfer the urheberrecht, i.e. the “right of the originator/author”. You can only transfer rights of use, e.g. to a client, to a publisher etc.. The original author will remain the author-at-law for all times. A German publisher is of course allowed to print “Copyright by Springer” on the book, but it’s not the kind of copyright system as in the US. In the US the actual authorship rights can be transferred. The recipient then becomes the author. This doesn’t happen all the time, but it’s common, depending on the form of the assignment and the way the final product is produced (and by whom). Depending on the contract, the new author-at-law may still name the original author in connection with the final product, which is most common, but to my knowledge not mandatory. (Example: ghostwriting assignments.) One consequence from this difference is e.g. that since in Germany the author always stays the author-at-law, there is then also no way to avoid the author’s right to revocation, which makes it difficult for German authors to come to a legal agreement with US clients, because the latter usually want irrevocable rights of use, while a German author is by law not allowed to irrevocably transfer them.

  3. I think a transfer of all rights, unrestricted, irrevocable, including copyright (rights of authorship, i.e. “author-at-law”) is usually called a “total buy-out”. The original creator receives one huge chunk of money, and that’s it. Normally the original author is still entitled to royalties, but in the case of a total buy-out he doesn’t even receive royalties from the publisher or royalties from the rights organizations. This is apparently what happened in the case of the James Bond Theme. Monty Norman’s original composition was rejected by the producers, and they went for John Barry’s composition, which the latter obviously transfered as a total buy-out, because he isn’t listed as the author and the courts have ruled several times that he has no right to receive royalties. There is a buy-out system in continental laws as well, e.g. in Germany, but a total buy-out is impossible, simply because the original author always remains the author-at-law. He will always have the right to the different kinds of royalties, the right to be named in connection with the work, the right to revoke etc.

  4. When I was doing graduate studies in France we were taught several things about copyright (because when a layer costs 30,000 euros to produces, obviously copyright becomes important). Copyright is something that has entered French law from Anglo-Saxon, a foreign concept. There are 2 kinds of author rights: parentage and commercial. Parentage rights are irrevocable and intransferable, I will always be the writer of this post and I have the right for all eternity to identified as him. Commercial rights are fully transferable but still I always have the right to be identified as the original author

  5. Yes, the French droit d’auteur is very similar to the German Urheberrecht. In US/UK laws there is also a concept called “moral rights”, but it isn’t as strong as the parentage rights in continental law, although some parts of it are the same (e.g. attribution rights, work integrity etc.).

  6. Hi, just wondering if you could tell me whether it is possible, under French and/or German Copyright regimes, to transfer the absolute right to exploit a particular work in any mode manner or format on a lump sum (one-time) payment basis- including the right to receive various royalties from broadcast/public performance of a work – without (ofcourse) restricting the so called moral rights of the author, i.e. attribution, respect of the work, withdrawal and honour/reputation. That is to say, can a total assignment of a particular work be effectuated in favour of a natural/ legal person for a one time payment?

  7. That is a technical question, and not being French or German, I don’t know for sure. But I think the answer must be yes. How else can publishers operate?

    Hans Dampf will have a view on German law which will be better informed than mine, I’m sure.

  8. Under German law it is not possible to transfer absolute rights. In fact the law states explicitly that if the marketability of the work changes unexpectedly, the author has the right to request additional fair renumeration.

    Furthermore, similar to the UK case referred to in the original post, any transferred rights must be transferred in writing. Hence, if a particular right was not explicitly mentioned, it was not transferred.

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