Filter

Open

Copyright and Commissioning: Everything You Need to Know

02

AUG

2020

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 commission 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 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 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.

About the Firm

KASS International Sdn. Bhd.
Address Suite 8-13A-2, Menara Mutiara Bangsar, Jalan Liku, Off Jalan Riong, Bangsar, 59100 Kuala Lumpur, Malaysia
Tel 60-3-2284 7872
Fax 60-3-2284 1125
Email hello@kass.asia
Link www.kass.asia

Related Articles

01
JUN
2022
Why Logo Design is Crucial to Business Success
01
JUN
2022
A logo is an important aspect of a business’s makeup and plays a critical role in promoting pu...

Read More

05
MAY
2022
Food at Your Doorstep – Just One Click Away!
05
MAY
2022
Remember the days when we ignored our cravings for our favorite meal because of the thought of havin...

Read More

11
FEB
2022
How to Pick a Diamond in the Rough: 3 Qualities of a Successful Franchisee
11
FEB
2022
A franchisee can make or break your business. This has become even more applicable in the aftermath ...

Read More

07
FEB
2022
Franchises after the Pandemic: Boon or Bane?
07
FEB
2022
The COVID-19 vaccines have arrived on our shores. If effectively rolled out and deployed on schedule...

Read More

05
JAN
2022
Are Cover Songs an Act of Infringement?
05
JAN
2022
Cover songs have always been a major part of music culture, with both famous and amateur singers acr...

Read More

05
JAN
2022
Cool Influencers vs Cruel Infringers: Do KOLs Have IP Rights?
05
JAN
2022
I still remember the day I told my mom that my friends and I were going to shoot a short film and up...

Read More

03
DEC
2021
Top 3 Reasons to Register a Patent for Your Invention
03
DEC
2021
Say “Hey Google, turn off the lights” and Google Assistant will switch off the lights in...

Read More

11
NOV
2021
Gloves, Musang King Durians and IP Rights
11
NOV
2021
“TOP GLOVE’S R&D arm ranks second highest among Malaysian patent applicants in 2020&rdqu...

Read More

15
SEP
2021
COVID-19 Pandemic: IP Issues & Challenges
15
SEP
2021
While the COVID-19 pandemic enrages the world, there are frantic efforts to produce effective and sa...

Read More

09
AUG
2021
Are You Taking Advantage of RCEP Provisions?
09
AUG
2021
Businesses have started to multiply their corporate assets in the ASEAN countries by taking advantag...

Read More

08
JUL
2021
Netflix: A Binging Addiction Surrounding Intellectual Property
08
JUL
2021
To stream, binge and watch. These days, audiences in search of entertainment have one place in mind ...

Read More

25
MAY
2021
Strange But Unique Inventions
25
MAY
2021
Who would have thought that in 2021, wearing a mask would actually be a part of everyday life? A new...

Read More

26
APR
2021
Voila! A Chic Hijab!
26
APR
2021
CHIC?? VOILA?? What do these two words have to do with a hijab? Well, in this case – plenty! I...

Read More

07
APR
2021
World-Changing Women Wonders
07
APR
2021
The field of science, technology, engineering and math (STEM) is often male-dominated and studies sh...

Read More

02
MAR
2021
ABCs of Trademarks
02
MAR
2021
Have you ever wondered whether plain alphabets can function as trademarks for goods or for services?...

Read More

02
FEB
2021
Poking Fun at a Trademark, and Making $$$ from that – Is it Infringement?
02
FEB
2021
If you’re going to make a joke about someone’s brand, you had best make sure they have a...

Read More

22
JAN
2021
What is Copyright Notice, and Why Bother with It?
22
JAN
2021
A copyright notice may seem like little more than superfluous text tacked on to the end of a website...

Read More

09
NOV
2020
Let’s Make Functional Foods Fully Functioning!
09
NOV
2020
First you look at it, next you smell it and then you take a bite of it. For centuries, consumers hav...

Read More

15
OCT
2020
Non-Traditional Trademarks
15
OCT
2020
It is a great time to stand out and be different. Thanks to our new Trademarks Act 2019, individuals...

Read More

31
AUG
2020
Imaginations Vs Innovation Vs Patents
31
AUG
2020
“What? A card for paying money?” This is how people might have reacted when they were f...

Read More

03
JUL
2020
COVID-19 The Pandemic Affecting The IP World (And Basically Everything Else)
03
JUL
2020
Where hope was once the prevalent state of mind when a new year rolled around, this year that notion...

Read More

09
JUN
2020
Don’t Go Brexit My Heart!
09
JUN
2020
Britain finally decides on a finale, ending a half century bond and “divorcing” Europe o...

Read More

09
JUN
2020
COVID-19 Vaccines & Treatments: Who Owns the Rights?
09
JUN
2020
Moderna Inc., Sanofi, AstraZeneca plc, Roche, Gilead Sciences and Novartis are just some of the many...

Read More

06
APR
2020
From Tatooine to Naboo, Intellectual Property Protection in The Star Wars Franchise
06
APR
2020
’Tis the season when the force awakens fans of the Star Wars franchise around the galaxy far, ...

Read More

05
FEB
2020
Wherefore Art Thou Spider-Man?
05
FEB
2020
Tensions rose, jaws floored – will Spider-Man no longer be part of the Marvel Cinematic Univer...

Read More

  • 1
  • 2