Assignment and license agreements

The defaults are not what people assume

Most companies believe that paying for creative work leaves ownership with the creator until a contract says otherwise. Mexican law is more nuanced, and getting it wrong in either direction is expensive.

• Commissioned work. Unless agreed otherwise, whoever commissions the production of a work holds the economic rights in it (article 83 of the Mexican Federal Copyright Law). The person paid to participate keeps the right to be credited.
• Employees. With a written individual employment contract and nothing else agreed, the economic rights are presumed split equally between employer and employee. With no written contract they belong to the employee (article 84).
• Software by employees. Rights belong to the employer unless agreed otherwise (article 103).

So the agreement is not there to create a transfer out of nothing. It is there to settle which of these rules applies, to displace the ones that do not suit you, and to fix a term.

The rules every transfer has to satisfy

Transfers of economic rights and licences must be in writing, without exception, or they are null by operation of law. Every transfer is onerous and temporary (article 30). And where the agreement states no term, the transfer is taken to last five years; longer than fifteen years is possible only exceptionally, where the nature of the work or the scale of the investment justifies it (article 33).

That five-year default is the quiet problem in portfolios built a decade ago. Computer programs are the express exception: there, the assignment has no time limit (article 103).

What a usable agreement settles

• Exactly which works, including versions and derivatives created later.
• Whether it is an assignment or a licence, and if a licence, exclusive or not.
• Territory, permitted uses and, above all, the term.
• Delivery of source files, not only the final output.
• Attribution, handled openly, since moral rights are inalienable and unwaivable (article 19).
• Warranty of originality and non-infringement.
• Recording in the public register, which gives publicity and legal certainty.

What we do

We draft and review these agreements, and we fix them backwards: where work was commissioned years ago on a handshake, or under a document with no term, we prepare what regularises it before an investor or a buyer asks.