Commissioned works are works that are commissioned by one party and created by another. Typically the copyright remains legally in the hands of the content creator, but rules may differ per country or territory.
Commissioned works can only be uploaded to Wikimedia Commons with permission from the copyright holder.
Copyrights of works commissioned by an organisation from an independent contractor typically are not be owned by the organisation that commissioned them unless there has been an explicit transfer of rights. Depending on terms of employment, this may also be true of some work by the employees of an organisation. These rules differ per country and territory.
Only the owner of the copyright can grant a license. If the copyright-holder has indicated a license online, please indicate the relevant URL when uploading the photo (or edit the file page after uploading to indicate it). If there is no such online indication, then that copyright-holder may have to go through OTRS to clarify that it is, indeed, their intent to grant such a license.
Rules by territory
Under the Proclamation No. 410/2004 on Copyright and Neighboring Rights Protection (Federal Negarit Gazeta):
- Where the work is a work created by an author employed or Commissioned by a person in the course of his employment or contract of service, unless agreed otherwise, the original owner of the rights shall be the employer or the person who commissioned the work.[410/2004 Article 21/4]
Under Article 18 of the Law of Mongolia on Copyright and Related Rights (as last amended on January 19, 2006):
- Pursuant to the agreement for a commissioned work, the author shall undertake duties to create and submit a work and the person commissioning the work shall undertake duties to pay the remuneration to the author.[2006 Article 18.1]
- The holder of exclusive rights shall be determined by the agreement.[2006 Article 18.2]
Law No. 13714 established the State or organizations as the owner of the works created under commission or employment contract. DL 822 completely loses the transfer of the patrimonial owner, but article 16 of 1996 copyright law establish certain rights to the commissioner (whether natural or juridical person) such as the exclusivity of disclosure of the work or the moral rights of the authors (see Resolución Nº 0127-2008/CDA-INDECOPI pages 11-12).
- Works created during the course of employment
- In the case of work created by an author during and in the course of his employment, the copyright shall belong to:
- (a) The employee, if the creation of the object of copyright is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer.
- (b) The employer, if the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary.[8293/2015 Section 178.3]
- Works created during the course of commission
In most cases physical ownership does not equate to ownership of copyright:
- In the case of a work commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of the work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary.[8293/2015 Section 178.4]
This especially applies to cases of works commissioned and owned by the Philippine Government or its subdivisions and instrumentalities, but the creators or authors of such works are not employees of the Government or the Government itself.
The rule on commissioned works in the United Kingdom is provided by the Design and Artists Copyright Society (DACS) website.
Accordingly, the Copyright, Designs and Patent Act of 1988 empowers the exclusive rights of the authors. This means, unless there is a signed agreement transfering the copyright to someone else, the copyright in a commissioned work since August 1, 1989 is retained by the author or the person who created or designed the work. There may be some exceptions to this rule, however. For example, the commissioner holds the copyright if they may have "an implied licence to use the work", at least for the purposes of commission, and if the artist made the work while employed.
The copyrights in the commissioned works made prior to 1 August 1989 are generally held by the commissioners.
- For commissioned works created from 1 June 1957 to 31 July 1989, copyright stays with the commissioner when the works are "commissioned", under the Copyright Act 1956. "Commissioning" is defined here as "the payment or agreement to pay for a work with money or something of equivalent value." This means, the copyright in a work made by an artist while employed remains with the employer (the commissioner). Works made by artists under employment by a newspaper, magazine, or periodical owner, but solely for the purpose of publishing in the said publications, are likewise covered. In cases of other uses of commissioned works, the artists retain the ownership of copyright.
- The Copyright Act 1911 applies to commissioned works made from 1 July 1912 to 31 May 1957. It had provisions identical to those at the Copyright Act 1956.
- For commissioned works made prior to 1 July 1912, the 1862 Fine Arts Copyright Act governs, stating that copyright of a painting, drawing, or photograph done for or on behalf of another person "for good and valuable consideration" belongs to the commissioner.
- Commissioned Works - US Legal.
- Copyright and Commissioned Art - What to know before you take your next commission by Jonathan Bailey (September 5, 2019) - PlagiarismToday.
- Copyright Ownership and Transfers FAQs by Rich Stim (Stanford University).
- en:w:Commission (art) - English Wikipedia.
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