9 April 2025

Commissioning Creators: – is a copyright assignment always the right option?

By Sean Waterman, Head of Intellectual Property

The default position for many organisations when commissioning work is to ensure that the copyright ownership is always assigned to them. This may be appropriate in many situations, securing the copyright ownership ensures control over how the work can be exploited, but for cultural institutions commissioning creators, a more nuanced approach may be required that considers the commissioned party’s perspective.

Take for example a museum commissioning an artist to create a work for display in a temporary exhibition. It is hoped the work will be an essential must see highlight of the show and key to its promotion, with commercial potential for merchandise to boot. There are however no plans to acquire the work on a permanent basis as part of the museum’s collections.

Should the museum require the artist to assign their copyright when they will only be displaying the work temporarily, after all why should the museum need to retain control over the copyright in the work once the exhibition has finished? How will a hard line position on copyright ownership impact the museum’s reputation in the artistic community, could it be perceived as reinforcing power imbalances?

Perhaps the artist will turn down the commission if they consider the commission fee too low to merit assigning their copyright, especially if the museum aims to profit from the commercial exploitation of their work. Of course, the artist will gain exposure from their work being featured the exhibition, but the museum will also benefit from featuring their work.

A more equitable approach would be for the artist to retain the copyright but grant the museum exclusive rights to the work for the duration of the exhibition with the museum retaining limited non-exclusive rights, including the right to be accredited as the commissioning party, once the exhibition ends. This would ensure the museum is in control over the use of the work during the critical period of the exhibition, but the artist regains control once the exhibition ends.

As for the commercial exploitation of the work ensuring the commission fee reflects the museum’s commercial use of the work, or that the artist receives a share of the revenues generated by sales of merchandise may be acceptable solutions, although the artist may want to ensure they are consulted for approval of any commercial products developed by the museum.

In other words, there are options. The context needs to be understood and the appropriate clauses utilised. If this is an issue that resonates for you or your organisation – Naomi Korn Associates’ course on Copyright and Commissioning (Wed, 23 April 2025 09:30 – 13:00 GMT) explores the copyright issues that need to be addressed when commissioning work. Book today via Eventbrite or for more information, contact our Training Manager at info@naomikorn.com.