What happens with rights when an author works in a company?
Article 51 of the Spanish Intellectual Property Rights Act deals with the transmission of the rights working as an employee. The Act establishes that the transmission to the employing agent of exploitation rights for a work created on the grounds of a contractual relationship will be governed by the agreed terms and conditions established in the contract.
When there is no written agreement, it shall be understood that the exploitation rights have been exclusively passed on with the necessary scope to carry out the usual work of the employee upon delivery of the work.
What should we do if our work has been used unlawfully?
It is only too often that we see commissioned illustrations used unlawfully or that, once they have been made, are then used for purposes other than those initially agreed.
There have been cases with logos being used unlawfully and without the author’s consent, or other cases where, for example, an illustration was made for an information leaflet and then that same illustration was used to decorate a stand at a fair.
If an author becomes aware of such a thing, he/she should report this so that the company or publisher giving an unlawful use to this illustration compensates the author for any damage caused, both for damage against property, in which case the author can claim damages for the benefits he/she could have gained had there not been an unlawful use or for the retribution he/she would have had if the use of the illustration had been authorized, as well as for moral damages.
If there is no negotiation in this process, there is the possibility to undergo an exhaustive assessment, or to take the case to court presenting any proof of the unlawful use of the author’s work.
Should we demand a payment in advance when collaborating in the illustration of a book?
It may be possible that, if the promotion of a book isn’t adequate or if the book isn’t as successful as expected, there is an unfair situation where the illustrator’s work is barely paid for, or not in relation to the amount of work and effort put into the job. This is why it is important to try charging an advanced payment or any royalties that may be agreed.
Can we demand that the original work is returned once it has been reproduced?
Both articles 56 and article 64.6 of the Spanish Intellectual Property Act establish that original works may be recovered by their authors. Specifically, article 56.1 establishes that the proprietor of the support where the work is included does not have, for this sole reason, any right to exploit the work. In the opposite sense, the person owning the rights to exploit a work does not automatically acquire the physical support of the work or the original piece.
Article 64.6, in the framework of regulations on editing contracts, establishes that the editor has the obligation to hand the original piece of work being edited back to its author once printing and circulation are completed.
Are we protected by law when claiming acknowledgement for authorship of illustrations?
As a moral right of authors, it is essential, as established in article 14.3 of the Spanish Intellectual Property Rights Act, that authors can demand that their authorship of a work be recognized.
Due to a lax attitude, a lack of knowledge or indolence, very often works are reproduced without mentioning the author.
What is the meaning of assigning exclusive rights?
This means that the party assigning rights (the person or company receiving these rights and that can make use of this work) always limited to this work, shall be authorized to make use of this work exclusively, excluding any other person, including the author. This party shall also be authorized to assign non-exclusive rights to third parties.
This kind of assignment means that the assigning party must make available all possible means to achieve an effective use of the assignment, depending on the nature of the piece of work and the uses in place within the professional, industrial or commercial activity, depending on each case.
All these aspects are dealt with in Article 48 of the Spanish Intellectual Property Act.
For how long am I assigning these rights?
If in the invoice or contract you sign with your client there is no mention on the duration of this assignment, it will be understood that you have assigned rights for that work for a period of 5 years.
Normally, for books there is a clause in the agreement stating the duration of the rights that, in most cases, is for 15 years. For advertisements, the works are normally used for specific campaigns, but it is important to specify what campaign the work is for on the invoice.
I am not sure what I should charge for a work
If your are asked for a quote for a work, it is important for you to know that, in most cases, it is not necessary to answer straight away, it is quite normal to think it through and to assess what price to quote.
If you know anyone who has done any jobs similar to yours, feel free to ask. If you have any queries, you may also contact APIC.
Am I taking part in a collective work by illustrating a textbook?
According to Article 7 of the Spanish Intellectual Property Act, when a work is the result of a joint effort by various authors, the rights for that work belong to all of them, and to disseminate and modify this work it will be necessary to have the consent of all co-authors. Meanwhile, for collective works (Article 8 of the Spanish Intellectual Property Act), the main feature is that it must be created from the contributions made by different authors, and these contributions cannot be individualized or separate, this work then becomes a unique and independent work. Such is the case of an encyclopaedia.
Authors collaborating in the creation of a piece of work are authors in their own right and can therefore claim royalties to be distributed equally among them.
It is also possible for co-authors to distribute royalties unequally, depending on the grade of participation in the work.
This would not be possible for a collective work, since it is understood that rights have been assigned automatically to the person publishing and disseminating it.
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