By Daniella Fiocco
Commissioning has been described as the “lifeblood of the artistic world”, implying that without it the production and sale of artistic, musical and literary works would dwindle and deplete significantly. What authors, artists and musicians may not be aware of, however, is the effect of commissioning on the ownership of works and rights to the works in a legal sense. Specifically, commissioning often has a very profound effect on the ownership of copyright and those agreeing to work under a commission agreement ought to carefully consider these consequences before signing on the dotted line.
Copyright
Copyright is a term known by many but comprehensively understood by few. It refers to the protection of exclusive rights to artistic, musical, literary or other works, and operates to prevent the unauthorised use of such works by other parties. In effect, ownership of copyright declares to the world that you are the rightful owner and creator of the work – a claim which no one else can lawfully make. Copyright automatically applies to works in most countries around the world from the point at which the work is completed, and, unless some exception applies, is first vested in the author of the work. Though registration is noncompulsory, it has the potential to strengthen one’s rights and is advantageous when it comes to any disputes about copyright infringement. Depending on the country, copyright duration typically expands for the lifetime of the author plus an additional 50 or 70 years after the author’s death, at which point the copyright expires and the work enters the Public Domain.
Unquestionably, copyright is an important mechanism that protects creators and encourages the production of more creative works by providing an incentive in the form of monopolistic rights.
Commissioning
Commissioning – the supposed “lifeblood” – is the process in which a creator is approached by another party seeking to have a work completed for a price. It involves a contract – it should involve – that stipulates the terms of the commissioning, usually pertaining to the deadline and the amount payable for the work. This is to be distinguished from employment – a relationship between two parties governed by an employment contract – and the undertaking of work in the course of such employment that results in a work protected by copyright. Commissioning of work is a very specific agreement relating directly to the resultant product in which someone will end up owning exclusive rights.
Copyright and Commissioning
In Malaysia, section 26 of the Copyright Act 1987 stipulates that “where a work is commissioned by a person who is not the author’s employer, the copyright shall be deemed to be transferred to the person who commissions the work, subject to any agreement between the parties excluding or limiting such transfer”. Effectively, this means that a commissioner owns the rights to the work produced by the creator unless the agreement between the parties suggests otherwise. This, on the face of it, may appear unjust – but consider the following example…
Suppose you were to get married, and commissioned a photographer to document the day for you with his camera. Under the aforementioned principle, you – as the wedded couple – own the copyright to the photos; you control how and where they are used, who is able to use them, and on what terms. If the photographer owned the copyright to the images, he could justifiably disallow you to print the photos and display them on the wall of your home. He could restrict your sharing of the images on social media. And he could use them in whatever way he chose.
Of course, this example is simplified – and in being so, is limited; what happens if an architect is commissioned to design a building? Is the produced work not capable of being recognized as his? Is it not his right to protect his creative product? Nevertheless, at law, there is a rebuttable presumption that copyright is held by the commissioner of the work. Regardless of your opinion of this law (and my own), this relationship between the commissioner and copyright ownership is statutory in Malaysia and is shared in many countries, including Australia, the United States, Canada and China. But it leaves commissioners and creators with a very important question:
Where to from here?
Consulting your own countries legislation and speaking to an expert (lawyer) in copyright is, of course, crucial, especially given that these principles, assumptions and exceptions vary from country to country. The information provided above, however, serves as a warning to those agreeing to undertake commissioned work: make sure you know your rights before you sign the dotted line.
At the end of the day, you can be certain that the agreement between the commissioner and the commissioned, in all jurisdictions, is vital in determining who owns exclusive rights to the works produced under the agreement. If you wish to maintain that you are the creator, owner and copyright holder of the work you produce despite being commissioned to complete it, the contract between you and the person who commissioned the work must be carefully drafted to ensure that you are not “thrown under the bus”.
Commissioning may well be the lifeblood of the artistic world, but the artistic world would not exist without the hardworking hands and magnificent mind of creators. So make sure you know your rights before you put pen to paper, brush to canvas, or hand to string.
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