Your studio contracts do not work. We are looking for a way out of the situation



    When we deal with a freelancer and want to entrust him with creating a program or design, texts for a website or another product (for brevity we will call this result an intellectual product), then we adhere to one rule. When working with a freelancer, it is better to conclude not a contract for the provision of services or services, but a contract of copyright order. This type of agreement implies the creation of a result of intellectual activity, ensures that the Customer has the rights to an intellectual product and adequately reflects the essence of the relationship between the parties to the agreement. After all, it doesn’t matter for the customer how much time the contractor spent and in what torment the product was created. It is important that in the end the result meets the requirements of the Customer and the rights to it pass from the author to the payer. In other words, we pay not for the process, but for the result.

    Formulation of the problem


    But here is the annoyance. Such a wonderful agreement cannot be used when working with legal entities. The fact is that only individuals can be authors under Russian law. A legal entity cannot create creative results, since it does not physically have a brain (sorry for the physiological terminology) and, therefore, it is not able to think, imagine, invent. The authors will always be individuals, so we can’t conclude a copyright order agreement with a legal entity .

    How is the problem solved now?


    If a legal entity declares that it has rights to an intellectual product and is trying to get money from you for it, then it must prove to you how it received these rights and produce the relevant documents. One statement that the legal entity has arisen and that it is responsible for their validity is clearly not enough.
    Unfortunately, 90% of design agency contracts are sinful in this statement. The standard clause of the agreement states that the agency has all the intellectual rights and transfers them in full to its Customer. The customer is also illiterate in legal matters and is pleased with the tempting wording.


    But usually nothing stands behind this formulation, and in the event of a dispute, it is difficult to prove anything. Such a case, in a slightly different context, we have already described .


    Analysis of design agency contracts leaves a sad impression. We will not point the finger, but on average, it is a mixture of contracts for the provision of services, with conflicting conditions that do not reflect the essence of the relationship. A sort of “compote of letters”, if you look at the text of the contract with a strict legal look. If the parties to the agreement are satisfied with each other, then the compote will fulfill its function of formalizing a financial transaction, but when you are not lucky enough to quarrel and even go to court, it will be difficult to prove your case with an inadequate agreement. Even if everything is done perfectly under the contract, the problem may arise in the future not with the contracting party, but with the violator of the right to an intellectual product. And such an agreement will not allow you to prove the emergence of your intellectual property rights and, therefore,

    As a result, the Customer “acquires” the rights of others and pays money for them to the not present copyright holder. Agency - receives money for the rights of others and is illegally enriched.


    Consequently, both the Customer and the Contractor are in the risk zone. Such an illiterate contract that does not reflect the essence of the relationship, can be used by these authors. It is they who can make claims, firstly, against the Customer, who, unknowingly, but nevertheless, illegally uses their result (after all, the rights did not go to the customer, although he paid for them). Secondly, to the agency, since the authors did not receive royalties (or actually received, but it is either not designed in any way, or it is crooked and allows you to abuse it).


    Which exit?


    Let's first understand the essence of the chain of relations: Customer - Agency - Author.

    The author and the Customer we had in the contract of copyright order and if you remove the agency, then we reduce the scheme to the contract of copyright order. In certain cases, this option with the exception of the agency from the scheme is the best way to solve the problem. Unfortunately, this method is not always applicable. And we are not looking for easy ways!

    But there is a solution! We understand that the Agency plays the role of organizer of the creation of an intellectual product. Several authors participate in the creation, who do heterogeneous work and make various creative and organizational contributions to the appearance of the product. And the Agency performs a managerial function for which there is an established term in the creative environment - production.

    The producer goes on stage


    In short, the producer analyzes the task, selects a team for implementation, distributes orders and monitors their execution, is responsible for the final result. This is not a creative activity, but it is also important: only with its help can we achieve results in the creation of non-trivial products (in the terminology of the law - complex objects of intellectual property).
    Legally, the producer himself acts as the Customer for individual authors and accumulates their rights to themselves. As a result, the rights to a complex product arise already with him and he can legally transfer them to the Customer.

    So, are agency design producers?


    Oddly enough this sounds, but from a legal point of view, everything is exactly so. Do not be confused by an unusual name. The main thing is that it accurately describes the essence of the relationship in the chain Customer-Agency-Authors, and the terminology will become familiar after a certain time. We take the liberty and propose to name the agency agreements in accordance with their nature, that is, producer agreements.

    The main conditions that distinguish the contract from the contract and the provision of services

    The main obligation of the Agency in the production contract will be the organization of the process of creating an intellectual result, and not the provision of any mythical services or performance of work. Also, an indispensable condition of the contract will be obtaining rights from individual authors (with the execution of relevant documents) and transferring the entire amount of rights to the Customer.
    For its part, the Customer understands what exactly to demand from the Agency and does not pay if there is no result and documents on the rights to this result. In the case of the services and services of the Customer, other levers of pressure on the Agency are completely different and they are not so effective.

    To summarize


    A production contract is an upgrade of an author’s contract with the addition of the figure of the organizer of the creation of an intellectual product. This type of contract is needed when the product is complex and requires the combination of creative and other contributions of many participants.
    The producer combines the efforts of several authors and persons providing organizational assistance, coordinates their activities and is responsible for the final result. By the way, the producer can be not only a legal entity, but also an individual entrepreneur, and just an individual.
    The customer receives what he needs - an intellectual result and rights to it, confirmed by documents.
    The authors are engaged in creative activities and are not wasted on organizational issues.
    In a word - synergy (sorry for the bored term). And for the design of this synergy, it is better to use a producer agreement than to dispense with old crutches from a mixture of service and contract agreements. In any case, all the options we have put Habre .

    The choice is always yours.

    (c) Kirill Mityagin

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