The growing development of the creative, technology, advertising, and audiovisual industries has led to a significant increase in the production of intellectual works, created both under employment contracts and through service agreements or commissioned works. In this context, the assignment of economic rights in commissioned works and under employment contracts poses one of the main legal challenges: determining who holds the economic rights to the created work and what the scope of their assignment is.
Commissioned Works
In a commissioned work, a natural or legal person requests that an author create a specific work in accordance with previously defined instructions or parameters and also assumes the financial cost of the project. This arrangement is particularly common in advertising campaigns, software development, graphic design, audiovisual production, architecture, branding, and digital content creation. One of the main legal debates centers on whether this type of relationship automatically results in the transfer of economic rights or whether, on the contrary, such assignment requires an express provision.
In Central America, the prevailing view is that the author retains the original ownership of the work, unless expressly agreed otherwise. Therefore, it is essential to include clear assignment clauses in the commission contract. Legal doctrine and comparative practice recognize that, even though some laws allow for presumptions of assignment in favor of the client, these must be interpreted restrictively.
Consequently, to avoid future conflicts, the contract must expressly define the authorized forms of exploitation, their duration, the territorial scope, the rights to adaptation, sublicensing, and future digital or commercial exploitation.
Works Created Within an Employment Relationship
The situation changes when the work is created within a subordinate employment relationship. In these cases, the employee performs creative activities as part of their regular duties and under the employer’s direction, as is the case with designers at agencies, programmers, corporate copywriters, advertising creatives, or salaried audiovisual producers.
Unlike commissioned works, an employment contract involves legal subordination and economic dependence of the employee on the employer. Consequently, various Central American laws and legal doctrines recognize that the employer may acquire the economic rights to works created in the course of the employee’s job duties.
However, this does not imply that the transfer is absolute or unlimited. As a general rule, the assignment is understood to be limited to the company’s ordinary activities, to the purposes set forth in the contract, and to the forms of exploitation necessary for the business activity. For this reason, if the employer intends to exploit the work in different contexts or transfer it to third parties, it is advisable to include express clauses providing for a broad assignment.
Likewise, automatic assignment should not be presumed with respect to works created outside the scope of employment duties, the employee’s personal projects, works developed outside working hours and without company resources, or with respect to forms of exploitation not provided for in the contract.
The essential difference between the two concepts lies in the nature of the legal relationship between the parties. While a commissioned work constitutes an independent civil or commercial relationship, in which the creator retains greater technical and creative autonomy, an employment contract implies permanent legal subordination and direct control by the employer over the activity performed.
Currently, companies are incorporating increasingly robust intellectual property clauses aimed at securing exclusive ownership, international exploitation, and unlimited digital use of the works. However, courts and administrative authorities continue to apply restrictive criteria regarding ambiguous transfers and prioritize the protection of the author when the contract does not clearly define the scope of the transfer.
In conclusion, although copyright law recognizes the creator as the original owner of the work, the scope of the economic rights transfer varies depending on the nature of the existing legal relationship. While in commissioned works the transfer requires an express and detailed stipulation, in an employment contract a functional presumption may apply, limited to the employer’s own activities. In both cases, the restrictive interpretation of the assignment and the protection of moral rights remain essential principles of the Central American copyright system.