By: Ricardo Gomez Hernandez
A work for hire can be defined as a work that is not the product of the author's initiative nor derives from an idea of his own, but is developed by the latter as a result of a specific and remunerated commission requested by a third party ("client") 1. In other words, this type of work originates from the intellect of the person who commissions it, but is materialized by a different author.
This type of work becomes relevant because, based on the remunerated commission made by the client, the latter obtains the ownership of the rights of economic exploitation of the work, as well as the rights of disclosure, integrity and collection.2, which correspond to the category of moral rights. On the other hand, the author retains the right to be recognized as the creator of the work. This is based on the fact that, even when the concept and guidelines of the work are provided by the client, the ideas themselves are not subject to protection. 3 under the Mexican Federal Copyright Law, but are protected until they are embodied in a material support. 4.
Properly documenting the commission of a work is especially important for the parties. Pursuant to Article 83 bis of the Mexican Federal Copyright Law, in the event of any doubt as to the terms of the work for hire contract, the interpretation most favorable to the author 5, shall prevail; however , the damages are equally applicable to both parties.
For the client, the failure to clearly state the terms of the work for hire may result in the loss of the rights of economic exploitation of the work, which is why it must at least expressly include that:
(i) It will be entitled to the economic rights of the work;
(ii) It provided the characteristics of the work to the material author;
(iii) The commission was remunerated, and;
(iv) The powers of disclosure, integrity and collection shall correspond to him/her. It must also avoid clauses that may be interpreted as a different legal concept, such as the assignment of rights or license of use, since in these cases the material author retains the economic rights of the work.
For the author, it will be essential to verify if he/she is really facing the figure of work for hire before signing and accepting any contract. Among other issues, he/she must confirm:
a. If indeed the client provided him/her with an instruction with the characteristics of the work, and;
b. If the remuneration coincides with the nature of the work.
In the event that the work had already been created prior to the execution of the contract, or that it was created by the author's own creativity, it is very likely that the applicable figure would be that of a license, or an assignment of rights, which by operation of law is temporary and remunerated . 6.
6 Article 30, second paragraph of the Mexican Federal Copyright Law
5 Article 83 bis, second paragraph of the Mexican Federal Copyright Law
2 Article 83 of the Mexican Federal Copyright Law
3 Article 14, section I of the Mexican Federal Copyright Law
4 Article 5 of the Mexican Federal Copyright Law
1 Judicial precedent number 2016237 under the heading “DERECHO DE AUTOR. LOS ARTÍCULOS 80, PRIMER PÁRRAFO Y 83 DE LA LEY FEDERAL RELATIVA NO SON NORMAS ESPECIALES EXCLUYENTES, SINO CONVERGENTES, TRATÁNDOSE DE UNA OBRA POR ENCARGO DESARROLLADA EN COAUTORÍA, CUANDO EL COMITENTE PARTICIPE TAMBIÉN EN SU CREACIÓN Y SE TRATE DE UNA COLABORACIÓN PERFECTA”.
