Work-for-hire agreements

Three different defaults, and most companies know none of them

Who owns what your people create depends on how they were engaged, and Mexican law sets a different presumption for each route. All three can be displaced by agreement, which is the whole point of having one.

• Commission. Where the company commissioned the production of a work, the economic rights are the company, unless agreed otherwise (article 83 of the Mexican Federal Copyright Law). The person paid to participate retains the right to be credited for their part.
• Employment. With a written individual employment contract and nothing else agreed, the economic rights are presumed to be divided equally between employer and employee. With no written employment contract, they belong to the employee (article 84).
• Software by employees. Programs and documentation created in the exercise of duties, or on the employer instructions, belong to the employer unless agreed otherwise (article 103).

The employment rule is the one that alarms people, and rightly. A company with staff designers or writers and no clause on the point may hold half of what they produced, and if the employment contract was never put in writing, none of it.

Where the real argument happens

Not on the rule, but on which rule applies. Was the agency engaged to produce a work for you, or did it license you something it already owned? Was the developer an employee in substance, or an independent supplier? Those questions get litigated precisely because nobody wrote the answer down at the time.

What the clause has to cover

• Express assignment of economic rights in everything created in connection with the engagement, displacing the default where it does not suit you.
• A stated term, because silence means five years (article 33), except for software, which has no limit (article 103).
• Delivery of source and working files, with deadlines.
• Treatment of pre-existing material the creator brings in, and the licence over it.
• Attribution, dealt with honestly: moral rights are inalienable, unwaivable and do not expire (article 19).
• Confidentiality, which is a separate obligation from ownership.

What we do

We draft the clauses for employment contracts and the standalone agreements for contractors and agencies, and we run the audit that tells you which of your existing assets rests on a presumption rather than on a document.