Copyright

Copyright concerns the exclusive right to new and original designs: these are referred to as copyrighted works. Minor changes are sometimes sufficient to qualify as new, and sometimes not.

Who is the creator?

The actual creator owns the copyright, but sometimes it is the employer or client. Copyright is economically important. Copyright arises automatically, but your own date is legally relevant if someone else claims an older copyright.

Numerous professions and sectors are legally based on copyright. Think of professions such as industrial designers, software developers, publishers, singers and photographers. Copyright also plays a role for film producers, journalists, writers, painters, architects, draughtsmen, scientists, choreographers, sculptors and artists. Client practice is therefore very varied.

When is a work considered new?

The concepts of innovation, creation and originality are central, but the threshold for considering a work new is not high. Ask for advice and contact us without obligation on +31 (0) 20 521 01 30. Copyright grants a monopoly right, but there are a number of exceptions. These are justified, but they do make it complex. In copyright practice, questions arise such as: when does quotation become plagiarism and when is it permissible for a news station or other media to reproduce “news” (within the framework of press law)?

In addition to quotation and plagiarism, copyrighted “works” can be adapted by a new author, creating a new “independent copyrighted work”. This adaptation is not counterfeiting, and the older adapted work remains subject to the copyright of the older author. Please call or email us for further details regarding your specific case.

Is imitating a person a joke or an insult? Who is actually the creator? The employer, the freelancer, the client or someone else? The question of who owns the copyright can also be complex, including in terms of evidence law. The question of whether a product is counterfeit or an adaptation arises regularly. The specialists at Fruytier Lawyers in Business have extensive experience and expertise in these areas.

How is it determined whether a work is original enough to be protected by copyright?

A work is protected by copyright if it has its own original character and bears the stamp of its creator. This does not mean that it must be innovative or revolutionary, but it must be the result of creative choices made by the creator themselves. Even a small difference from existing works can be enough, as long as it is not trivial or purely technical in nature. The court will assess whether the work reflects sufficient “personality”. Please note: purely functional designs or automatically generated content are generally excluded. In practice, this is often a grey area. What constitutes an original character bearing the stamp of the creator is subjective; in the EU, this assessment can vary from country to country. The Netherlands has a lower threshold in this respect than, for example, Germany or Sweden.

Practical topics:

  • infringement advice, combating counterfeiting, anti-piracy;
  • copying, counterfeiting, rectification, court order, seizure, summary proceedings;
  • Copyright logo
  • licences, royalty model; commission, creator, not author;
  • reputational damage, defamation and insult (celebrities) vs freedom of expression;
  • misleading communication; parody, privacy, portrait rights
  • distribution organisations such as Pictoright, Buma, Stemra, Sena, Sekam, etc.
  • sport and entertainment
  • transfer, redemption and division of copyrights
  • co-copyright; slavish imitation, lookalike
  • concurrence with Databases, Benelux Designs, EU Community Designs
  • concurrence with Neighbouring Rights (WNR) and Benelux or EU logos
  • customised software; I-depot;
  • compensation for immaterial and material damage; combating counterfeiting and imitation
  • extraordinary/higher legal costs or risk – Article 1019h of the Dutch Code of Civil Procedure.

What legal steps can be taken in a dispute over copyright ownership?

In a conflict over who actually owns the copyright, it usually starts with requesting and analysing evidence. This includes contracts, emails, versions of the work and other documents that show who created or agreed what. If there is no clear agreement, the actual creator is generally considered to hold the copyright. If there is still a dispute, a solicitor can negotiate on your behalf, for example to reach a settlement or transfer. If that fails, the court can be called in via proceedings on the merits or summary proceedings. The court can, among other things, determine who is the rightful owner, prohibit further exploitation and award damages. In the case of design, it may be worthwhile to search for even older designs so that the party claiming infringement is outclassed by older similar designs (also referred to as “heritage” in technical terms). Would you like to prevent or resolve disputes with a solid legal basis? We are happy to assist you in this.