Landine Varela wrote a blog for fashionunited.nl about the copyright aspects of commissioned works. Read the blog below, which was published on April 22, 2025.
The fashion world thrives on creativity. From unique prints to innovative silhouettes – designers bring a vision to life with their work. But behind that creativity lies a legal reality that is often overlooked. After all, who is the owner of a commissioned design? The client or employer who pays? Or the designer who creates?
Many clients think: “I paid for it, so it belongs to me.” But legally, things are often just a little different.
How is it regulated by law?
Copyright protects the creator’s original works – including fashion designs. The “creator” is the person who actually brings the work into existence. 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 one who may make the work public and reproduce it. In addition, the creator can grant others the right to make the work public and reproduce it—often for payment—(a so-called license).
But what if the design was created for the benefit of someone else? The question of who holds the copyright in this case must be answered differently in different situations:
The work was created by a designer who is employed
In this case, the employer automatically acquires the copyright, unless other agreements have been made. This is known as employer copyright.
A condition is, however, that the creation of the specific works falls within the employee’s job description. The copyright to a piece of music composed by an employed fashion designer remains with the designer, regardless of whether he created the piece during working hours. Furthermore, the employment relationship must be such that the employer has control over the form in which the work is created. If the employer has insufficient control, the copyright remains with the employee. Recently, there has been much debate regarding 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 neighboring rights to their employer in exchange for a fixed fee, was deemed by the European Court to be contrary to EU law. Whether Dutch employer copyright will also come under pressure remains uncertain. After all, in the Netherlands—unlike in Belgium—it is possible to deviate from the statutory regulation contractually.
The work is created by a designer commissioned by a client, such as freelancers or external design agencies.
A common view among clients is that they gain full control over a work because they have paid for it. However, this is not automatically the case. The copyright on a commissioned work remains with the designer of the work and can only be transferred to the client through a written transfer.
So, what are you paying for as a client?
If no further agreements have been made, the client obtains an implicit non-exclusive license to use the work in question. A non-exclusive license means that the designer retains control over the work and can therefore determine what to do with it. The client may only ‘use’ it (comparable to the difference between an owner and a tenant of a home). For example, the designer can transfer the copyright to another party or grant a license for the use of the work to third parties without the client’s permission. Furthermore, in this case, the client may not make changes to the work without the designer’s permission.
In addition to a non-exclusive license, an exclusive license is also an option. However, the parties must explicitly agree on this, and an exclusive license—just like a transfer of rights—can only be granted in writing. The difference with the non-exclusive license is that, in this case, the designer may not grant licenses to third parties. The foregoing differs only if the client conceived the design of the work and the work is subsequently created under their direction and supervision. This means that the contractor merely follows the client’s instructions and has no creative input of their 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 their unique creative input. If both the client and the designer have had their own creative input, there may be a joint copyright. In that case, the parties can only exploit the work jointly.
What are the risks of a lack of clear agreements between designer and client?
When no clear agreements have been made between the designer and the client regarding copyright, unpleasant situations can 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 apply to fashion designs. Benelux design law stipulates that the design and copyright rights to a Benelux design belong to the client and employer; therefore, a designer can unknowingly lose their copyright through the client’s registration of the design as a Benelux design. This does not apply to European designs: upon registration of the design, the client becomes the design rights holder, while the designer remains the copyright holder.
- The designer suddenly requests additional compensation if the design turns out to be extremely popular.
- The work is sold by the client to a third party without the designer’s permission. Or the designer transfers their copyright without the client’s knowledge, causing the license to lapse.
A dispute arises regarding who created the design – and thus regarding who is entitled to exploit it. - The client initiates legal proceedings against a third party who has copied the design based on copyright, without being considered the copyright holder.
This can lead to legal conflicts, production delays, or even the withdrawal of a collection from the market.
The silent pitfall: first publication by the client
Additionally, designers must be wary of the manner in which the design is first made public. If the client is the first to make the design public—for example, in a lookbook, during a fashion show, or online—without mentioning the designer’s name, the client is deemed to hold the copyright. This is only different if an agreement to the contrary has been made with the designer or if the first publication was unlawful (for example, because the attribution was omitted in violation of the agreements made).
For designers, this is therefore a pitfall: if you do not make an agreement with the client and they make the design public first without mentioning your name, you may be legally sidelined. For clients, however, this can be an unexpected windfall—or a risk, if a dispute arises.
Practical tips
For designers
- Ensure you have a good agreement or general terms and conditions in which you stipulate that you remain the copyright holder, unless you transfer the copyright by written deed.
- Request reasonable compensation if you decide to transfer your copyright (in whole or in part).
- Always mention your name when the design is first made public (think of presentations, social media, lookbooks).
- Consider using licenses: this allows you to retain the right, but grant permission for use.
- Keep sketches, designs, and communications: this helps demonstrate your authorship.
For long-term collaborations, ask for a framework agreement so that you do not have to renegotiate rights every time.
For clients
- Do not automatically assume that you own the design simply because you paid for it.
- Do you want to use the design exclusively or develop it further without needing permission from the designer? Then ensure a written transfer of copyright. Be careful if you are the first publisher: ensure that you do not violate agreements with the designer by omitting attribution contrary to the agreement.
- Be cautious about making modifications to designs without the designer’s permission: this can constitute infringement.
- Before involving a third party who markets copies of the design in legal proceedings: verify 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 their behalf.
Finally
In fashion, everything revolves around creativity – but that creativity needs protection. By making clear agreements regarding copyright from the start, you avoid unpleasant disputes later on. This creates room for genuine collaboration between clients and designers, where respect for each other’s roles and rights is paramount. Therefore, be transparent and make clear agreements before the collaboration begins.