Landine Varela wrote a blog for fashionunited.nl on the copyright aspects of commissioned works. Read the blog, which was published on 22 April 2025, below.
Image of a studio for illustrative purposes. Credits: Unsplash.
The fashion world revolves around creativity. From unique prints to innovative silhouettes, designers bring their vision to life through their work. But behind that creativity lies a legal reality that is often overlooked. Who owns a design that has been commissioned? The client or employer who pays for it? Or the designer who creates it?
Many clients think: ‘I paid for it, so it’s mine.’ But legally, it’s often a little different.
How is it regulated by law?
Copyright protects original works by the creator – including fashion designs. The ‘creator’ is the person who actually produces the work. The creator of a fashion design is therefore the designer. As the creator, you have the exclusive right to exploit your work. In other words, the creator is the only person who may publish and reproduce the work. The creator can also grant others the right to publish and reproduce the work, often in exchange for payment (a so-called licence).
But what if the design was created for someone else? The question of who owns the copyright in this case must be answered differently in different situations:
The work was created by a designer who is employed by a company
In this case, the employer automatically obtains the copyright, unless other agreements have been made. This is known as employer copyright.
The prerequisite is that the creation of the specific works falls within the employee’s job description. The copyright to a piece of music composed by a fashion designer employed by a company remains with the designer, regardless of whether he composed the piece during working hours. In addition, the employment relationship must be such that the employer has control over the form in which the work is created. If the employer does not have sufficient control, the copyright remains with the employee.
There has been much debate recently about employer copyright following a recent ruling by the European Court of Justice (the ONB judgment of 6 March 2025). A Belgian regulation, under which musicians of the National Orchestra of Belgium are obliged to transfer their neighbouring rights to their employer in exchange for a fixed fee, was deemed by the European Court to be in violation of EU law. Whether Dutch employer copyright will also come under scrutiny remains uncertain. After all, in the Netherlands – unlike in Belgium – it is possible to deviate from the statutory regulation by contract.
The work was created by a designer commissioned by a client, such as a freelancer or external design agency
A common misconception among clients is that they have full control over a work because they paid for it. However, this is not automatically the case. The copyright to a commissioned work remains with the designer of the work and can only be transferred to the client by means of a written transfer.
What are you paying for as a client?
If no further agreements have been made, the client obtains a tacit non-exclusive licence to use the work in question. A non-exclusive licence means that the designer retains control over the work and can therefore determine what to do with it. The client may only “use” it (similar to the difference between the owner and tenant of a house). For example, the designer can transfer the copyright to someone else or give a licence to use the work to third parties without the client’s permission. Also, in this case, the client can’t make changes to the work without the designer’s permission.
In addition to a non-exclusive licence, an exclusive licence is also possible. The parties will have to agree on this explicitly, and an exclusive licence – just like a transfer of rights – can only be granted in writing. The difference with a non-exclusive licence is that, in this case, the designer is not allowed to grant licences to third parties.
The above only differs if the client has conceived the design of the work and the work is then created under his direction and supervision. This means that the contractor only follows the client’s instructions and has no creative input of his own. In this case, the client holds the copyright. In practice, this is rarely the case: after all, a designer is hired precisely because of his unique creative input. If both the client and the designer have made their own creative contributions, there may be joint copyright. In that case, the parties may only exploit the work jointly.
What are the risks of not having proper agreements between the designer and the client?
If no clear agreements have been made between the designer and the client regarding copyright, unpleasant situations may arise, such as:
- The client wants to modify the design or have it reproduced by a third party, but the designer does not give permission for this.
- The client registers the design as a Benelux or Community design without the designer’s permission. In addition to copyright, design rights may also apply to fashion designs. Benelux design law stipulates that the design and copyrights to a Benelux design belong to the client and employer, so a designer may unwittingly lose their copyrights when the client registers the design as a Benelux design. This does not apply to European designs: when the design is registered, the client becomes the design right holder, while the designer remains the copyright holder.
- The designer suddenly requests additional compensation if the design proves to be extremely popular.
- The work is sold by the client to a third party without the designer’s consent. Or the designer transfers his copyright without the client’s knowledge, causing the licence to lapse.
- A dispute arises about who created the design – and therefore who is entitled to exploit it.
- The client initiates legal proceedings against a third party who has copied the design on the basis of copyright, without being the copyright holder.
This can lead to legal conflicts, delays in production or even the withdrawal of a collection from the market.
The silent pitfall: first publication by the client
Designers must also be wary of how the design is first made public. If the client publishes the design first – for example, in a look book, during a fashion show or online – without mentioning the designer’s name, the client is deemed to own the copyright. This is only different if something else has been agreed with the designer or if the first disclosure was unlawful (for example, because the name of the designer was not mentioned, contrary to the agreements made).
This is therefore a pitfall for designers: if you do not agree anything with the client and they are the first to publish the design without mentioning your name, you may find yourself legally sidelined. And for clients, this can be an unexpected windfall – or a risk, if a dispute arises.
Practical tips
For designers
- Make sure you have a good agreement or general terms and conditions in place, stating that you remain the copyright holder unless you transfer the copyrights by written deed.
- Ask for reasonable compensation if you decide to transfer your copyrights (in whole or in part).
- Always state your name when the design is first published (e.g. in presentations, on social media, in look books).
- Consider using licences: these allow you to retain your rights while granting permission for use.
- Keep sketches, designs and communications: these will help to prove your authorship.
- For long-term collaborations, request a framework agreement so that you do not have to renegotiate rights each time.
For clients
- Do not automatically assume that you own the design because you paid for it.
- Do you want to use the design exclusively or develop it further without the designer’s permission? Then ensure that you have a written transfer of copyright.
- Be careful if you are the first to publish the design: make sure you do not violate any agreements with the designer by omitting the designer’s name contrary to the agreement.
- Be careful when making changes to designs without the designer’s permission: this may constitute an infringement.
- Before involving a third party who markets copies of the design in legal proceedings, check whether you have obtained the copyright. If this is not the case, the designer must be involved in the proceedings or give permission to initiate proceedings on his behalf.
Finally
Fashion is all about creativity – but that creativity needs protection. By making clear agreements about copyright from the outset, you can avoid unpleasant discussions later on. This creates space for genuine collaboration between clients and designers, with respect for each other’s roles and rights at the heart of the relationship. So be transparent and make clear agreements before the collaboration begins.