Payment of copyrights to employees: wages or not?

Constitutes the compensation received by an employee for the transfer of copyright wages on which social security contributions (NSSO) are due? In a ruling of March 3, 2025, the Court of Cassation confirmed the strict principle: yes, such fees are wages when they are inseparable from the employment relationship. Although legislation since 2023 provides tax and social exemptions under strict conditions, this ruling remains a warning to creative sectors about the qualification of income.

The facts and context

The case that gave rise to this ruling revolves around a production house that makes television programs. For the realization of these, the company employed actors and directors, who were employed through an employment contract.

In addition to their monthly gross wages, these employees received, often through a separate agreement, lump-sum payments for the transfer of their copyrights and related rights to the employer. The NSSO challenged this construction, claiming that these ‘author's fees’ were in reality disguised wages. The NSSO claimed back contributions on these amounts.

The production house argued that the transfer of economic rights did not arise automatically from the employment contract, but was based on a separate contractual arrangement, and therefore these fees were separate from the employment performance.

The decision of the Court of Cassation.

In its March 3, 2025 ruling, the Court of Cassation rejected the production house's arguments and upheld the earlier ruling of the Brussels Labor Court.

The Court ruled that remuneration for the transfer of copyright and related rights should be considered wages within the meaning of the Wage Protection Act, on which social security contributions are due.

The Court's reasoning is clear:

• The compensation is a consideration for the transfer of rights to creations created in performance of the employment contract.
• Without the tasks assigned in the employment contract (roles, direction), no copyrights would have arisen and there was nothing to transfer.
• The fact that the transfer is governed by a separate agreement does not alter the fact that the compensation is payable “pursuant to the employment relationship”.

Legal analysis and interpretation

This ruling confirms the consistent and strict case law of the Supreme Court, in line with the earlier International Prom Orchestra ruling from 2014. The key question is whether a benefit is granted “pursuant to the employment relationship” (Art. 2 Wage Protection Act).

The Court here applies a broad interpretation. Even if copyrights have a legal life of their own (based on the Code of Economic Law) and do not automatically transfer to the employer, the Court held that economic reality prevails. If the creation for which the rights are transferred could not possibly exist without the labor contract, compensation for those rights is inseparable from the labor.

The Court explicitly states that it is irrelevant whether there is a mathematical relationship between the salary and the copyright remuneration, nor whether the employer later intensively exploits these rights.

Important nuance: the 2023 legislation It is crucial to note that this ruling refers to past facts, to which the general principles of the wage concept were applied. However, since January 1, 2023, specific legislation has been in force (Program Act Dec. 26, 2022 and RD April 7, 2023).

These new rules do provide for a specific regime whereby (under strict conditions and caps) part of the remuneration (maximum 30%) can be treated as movable income and exempt from regular NSSO contributions. This ruling is therefore an offshoot of the old view confirming the strict application of the salary concept for situations that fall outside the specific favorable regime.

What this specifically means

This ruling has implications for both employers and employees in the creative sector, as well as beyond (such as IT professionals who provide copyrighted work, although the scope for them has been limited since 2023).

• For employers: Merely drawing up a ‘separate contract’ for copyrights is insufficient to avoid NSSO contributions. If you use copyright fees, you must strictly comply with the conditions of the new regime (including the 30% limit and having a certificate of artwork). If you fall outside this regime, you run the risk of revisions and fines in the event of a social inspection, as the Court of Cassation interprets the wage concept very broadly.
• For employees: Although a net optimization via copyright is attractive, qualification as ‘wages’ also brings benefits for the accrual of social rights (such as pension and vacation pay). However, reclassification by the NSSO can lead to complex regularizations.

FAQ: Frequently asked questions

Is any copyright remuneration now automatically wages?
Not necessarily, but the presumption is strong. Since 2023, there is a legal framework that allows for an exemption from NSSO under strict conditions (including a ratio of no more than 30% royalties to the total package). If you do not meet these conditions, the NSSO, supported by this ruling, will consider the remuneration as salary.

Does it help to put the copyrights in a separate agreement?
No, this in itself is not sufficient. The Court of Cassation held that the fact that the transfer is governed by a separate contract does not affect its connection to the employment contract. The content and reality of the employment take precedence over the form of the contract.

Does this ruling also apply to the IT sector?
The principles of this ruling on the wage concept are generally valid. However, the specific tax and social benefit regimes for copyright have been significantly curtailed for the IT sector (computer programs) since 2023. For them, the risk of reclassification to wages, as confirmed in this ruling, has thus become even greater.

Conclusion

The March 3, 2025 ruling reminds us that the NSSO and the courts look through contractual constructions. A remuneration that originates in employment is, as a rule, wages. For companies in Belgium working with copyright fees, legal vigilance is required: only strict compliance with the new 2023 legislation provides protection against requalification.