The fee buys the object. The copyright passes only by a signed document.

A commission produces two things. One is a physical object, which the fee buys. The other is a copyright. In the United Kingdom and in France alike, it belongs to the artist from the moment the work is made. It reaches the client only through a document in the form the law requires.

Published by ArtisDomus, written by Polina Surina.

The two countries reach that answer by different routes. A deed drafted for one does not automatically satisfy the other.

Under the Copyright, Designs and Patents Act 1988, the author of a work is the person who creates it (s. 9(1)). The author is the first owner of any copyright in it, subject to the provisions that follow (s. 11(1)).

The exception is employment. Where an employee makes a literary, dramatic, musical or artistic work, or a film, in the course of employment, the employer is the first owner (s. 11(2)). An agreement to the contrary can change that. Crown copyright, Parliamentary copyright and the copyright of certain international organisations fall outside the section altogether (s. 11(3)).

Commissioning does not appear in section 11. A person who orders a work, specifies it and pays for it does not create it within section 9(1), and is not an employer within section 11(2). Nothing in the section turns payment into ownership.

That copyright lasts a long time. It expires at the end of 70 years from the end of the calendar year in which the author dies (s. 12(2)). So it outlives the artist by seventy calendar years and passes with the estate.

For an existing work, first ownership depends on the law in force when the work was made (1988 Act, Schedule 1, para. 11(1)). Existing works are works made before commencement. A work made over a period counts as made when it was completed (para. 1(3)).

Commencement was 1 August 1989, the day appointed for Part I of the Act (Copyright, Designs and Patents Act 1988 (Commencement No. 1) Order 1989, S.I. 1989/816, art. 2).

For a work made before that date, section 4(3) of the Copyright Act 1956 can still decide the answer. Paragraph 11(2) of Schedule 1 keeps it in force for that purpose. Under it, the person who commissioned the work is entitled to the copyright if three conditions are met. They commissioned the taking of a photograph, the painting or drawing of a portrait, or the making of an engraving. They paid or agreed to pay for it in money or money’s worth. And the work was made in pursuance of that commission.

So in a collection holding commissioned portraits and photographs of any age, the copyright position varies from object to object. It turns on a date most inventories do not record.

Copyright passes like other personal or moveable property: by assignment, by will or by operation of law (s. 90(1)). An assignment can be partial (s. 90(2)). It can cover one or more, but not all, of the acts only the owner may do. Or it can cover part, but not all, of the period the copyright lasts.

Section 90(3) settles most disputes: an assignment of copyright has effect only if it is in writing, signed by or on behalf of the person assigning it. A paid invoice does not meet that test, and nor does delivery of the canvas. No part of section 11 or section 90 attaches copyright to the object.

A commissioning agreement needs section 91(1), because at signature the work does not exist and there is no copyright yet to assign. Under section 91(1), the prospective owner can sign, or have signed on their behalf, an agreement assigning future copyright, wholly or partly, to another person. When the copyright comes into existence, it vests in the assignee or their successor in title. This happens if, at that moment, the assignee or someone claiming under them would be entitled, against everyone else, to require the copyright to be vested in them. A document signed by the artist that assigns the copyright in the work to be made falls within this.

Where the copyright stays with the artist, the client holds a licence. A licence binds everyone who later takes over the owner’s interest in the copyright (s. 90(4)). The exception is a purchaser in good faith who paid value without notice, actual or constructive, of the licence, and anyone who takes title from such a purchaser.

The moral rights in Chapter IV of the Act cannot be assigned (s. 94). An assignment of copyright leaves them with the author.

The right to be identified is in section 77(1). The author of a copyright literary, dramatic, musical or artistic work has the right to be identified as author in the circumstances the section lists. So does the director of a copyright film. For artistic works, these circumstances include commercial publication, public exhibition and communication to the public (s. 77(4)). The right is infringed only if it has been asserted under section 78.

Assertion is a formality with consequences: the form chosen decides who is bound. The right can be asserted generally, or for a specified act or type of act, in two ways (s. 78(2)). One is a statement, in the deed of assignment, that the author asserts the right to be identified. The other is a separate written instrument signed by the author. An assertion in the assignment binds the assignee and anyone claiming through them, whether or not they know of it (s. 78(4)(a)). A separate signed instrument binds only those who are made aware of it. For public exhibition there is a further route (s. 78(3)(a)). In that route, the author is identified on the original, or on a frame, mount or other thing attached to it, when the first owner parts with possession of it. That binds anyone who later holds the original, whether or not the identification is still there or visible. In deciding remedies, the court must take into account any delay in asserting the right (s. 78(5)).

The right to object to derogatory treatment is in section 80(1), and it needs no assertion. Treatment means any addition to, deletion from, alteration to or adaptation of the work. It is derogatory if it amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author or director (s. 80(2)). Sections 79 and 81 set out exceptions to both rights.

A client can get clear of either right in two ways (s. 87). An act the right-holder has consented to does not infringe any of these rights. And any of them can be waived by a written instrument signed by the person giving it up. A buyer who plans to crop, overpaint, reframe or restore needs that consent or that waiver. An assignment of copyright does not supply it.

One moral right in the Act runs the other way, in favour of the client. It belongs to a person who commissions a photograph or a film for private and domestic purposes, where copyright subsists in the result (s. 85(1)). That person can stop copies being issued to the public, the work being exhibited or shown in public, and the work being communicated to the public. It covers only photographs and films, and only a private and domestic purpose. There is no equivalent for a commissioned painting.

Under article L. 111-1 of the code de la propriété intellectuelle, the author of a work has an exclusive intangible property right in it, enforceable against everyone. The right arises from the mere fact of creation, and no formality is needed.

The third paragraph of the same article deals with commissions. An author who has, or enters into, a contract to make a work or provide a service (louage d’ouvrage ou de service) keeps full enjoyment of the right. This is subject to the exceptions in the code.

Article L. 111-3 states the rule that catches buyers. The intangible property in the work is independent of ownership of the physical object. Buying the object gives the buyer none of the rights in the code, except in the cases set out in the second and third paragraphs of article L. 123-4.

Three more articles complete the picture. Unless proved otherwise, the author is presumed to be the person or persons under whose name the work is disclosed (art. L. 113-1). Any representation or reproduction, in whole or in part, without the consent of the author or the author’s successors is unlawful (art. L. 122-4). The same applies to translation, adaptation, transformation, arrangement, or reproduction by any art or process. The author has the exclusive right of exploitation for life (art. L. 123-1). After the author’s death, the successors keep it for the rest of that calendar year and the seventy years that follow.

Writing is required: contracts that transfer an author’s rights must be recorded in writing (art. L. 131-2, second paragraph).

Article L. 131-3, first paragraph, sets the content. Each right transferred must be mentioned separately in the deed. The field of exploitation of the rights must be limited on four axes: extent, purpose (destination), place and duration. A clause assigning all rights in all media, worldwide and in perpetuity, meets none of these conditions.

French law also closes a door that English drafting leaves open. A global assignment of an artist’s future works is void (art. L. 131-1). A proper deed covers the commissioned work and names it.

And no deed can move the moral right (art. L. 121-1). The author has the right to respect for their name, their status as author and their work. The right is attached to the person. It is perpetual, inalienable and imprescriptible (it is not lost through the passage of time), and it passes to the author’s heirs on death. Perpetual means it does not end when the economic right lapses at seventy years. Inalienable means it cannot be transferred. How far an artist may consent in advance to a particular alteration is a question for French case law.

The clause most often missing from the commissioning documents ArtisDomus sees is the third: what may be done to the object afterwards. That covers cleaning, restoration, reframing, and cropping for a catalogue or a website. Clients usually find it missing at the moment they need it.

Where the artist, the client and the work are in different countries, private international law decides which country’s law governs first ownership.

A summary of the law. It is not legal or tax advice.