Should a copyright contract for commissioned works always include a price and duration?

When you, as a business owner, commission a creative work, are you legally obliged to specify the exact duration and remuneration for each mode of exploitation in the contract? A ruling by the Court of Cassation on Feb. 19, 2026, confirms that companies in the non-cultural sector are subject to a more flexible legal regime copyright whereby the absence of these specific elements does not render the contract null and void.

The facts

The dispute revolved around a businesswoman, active as a ‘life strategist,’ who had set up a project in which she wanted to publish a book and calendar about successful women entrepreneurs. She placed an order for this with a photographer, signing an agreement.

After some time, a disagreement arose between the two parties. The photographer unilaterally decided to end the cooperation and withdrew her permission for further use of the images taken. When the life strategist subsequently claimed damages, the Antwerp Court of Appeal initially ruled against her. The Court ruled that the entire agreement was null and void, simply because the text contained no clear provision regarding the specific duration of the transfer of rights, nor the financial compensation for the photographer as author.

The decision

However, the Court of Cassation ruled otherwise and set aside the ruling of the Court of Appeal. The Court based its ruling on the provisions concerning the transfer of economic rights in Article XI.167 of the Code of Economic Law (CEL).

According to the general rule (Article XI.167, § 1(4) CEL), for each mode of exploitation, the compensation, scope and duration must be explicitly determined. However, an explicit exception is provided in the law. Article XI.167, § 3, paragraphs 2 and 3, CEL provides that when a work is created in execution of an order, it is easier to transfer the economic rights if three conditions are met: the client is active in the non-cultural sector or advertising, the work is intended for that activity, and the transfer of rights is expressly provided for. In that particular case, the Court of Cassation confirmed, the strict formal requirements of the first paragraph - including the mandatory indication of remuneration and duration - do not apply. Consequently, it was erroneous for the court of appeal to declare the contract null and void.

Legal analysis and interpretation

Copyright contract law is traditionally characterized by a mandatory protection regime in favor of the author, who is de facto considered the economically weaker party to the contract. Article XI.167, § 1 CEL enshrines this finality by requiring that exploitation contracts be interpreted restrictively and that the remuneration, scope and duration of the license or transfer be explicitly stipulated, often under penalty of nullity.

Nevertheless, through Article XI.167, § 3 CEL, the legislature has created a pragmatic, prudential exception for commissioned works outside the purely cultural context. The ratio legis behind this is the need not to impede the smooth flow of common commercial transactions - such as ordering corporate photography, copywriting for websites, or graphic design for marketing purposes - with excessive form requirements. The Court of Cassation correctly stated that the court of appeal violated Article XI.167, § 3, third paragraph CEL by disregarding this more flexible provision. It is obvious that an entrepreneur in the non-cultural sector who uses a work purely as a publicity or functional tool should be able to rely on a general and valid assignment clause, without the mere silence on the duration or exploitation fee entailing the nullity of the contract (and thus heavy legal uncertainty).

In order to invoke this exception, however, three conditions must be cumulatively fulfilled. The demarcation of the ‘non-cultural sector’ is colored in economic terms: the nature of the client's activities is taken into account. As soon as these activities have a commercial purpose (such as making a profit), the activity is situated in the non-cultural sector, regardless of the artistic nature of the specific work ordered (such as a book or website).

Moreover, the application of this exception has far-reaching contractual implications. If one fails to make the duration and geographical scope explicit in such a contract for ordered works, the transfer is legally deemed to apply for the entire further term of protection and for the entire world.

Finally, the introduction of the horizontal rules from the European DSM Directive (on ‘exploitation agreements’) does not jeopardize the position of the commercial client. Indeed, article XI.167/4, paragraph 4, 4° CEL explicitly excludes the exploitation obligation and the author's legal right of revocation for commissioned works in the non-cultural or advertising sector. This exclusion serves to protect the client's freedom of exploitation, since he bears the entire business risk.

What this specifically means

• For business owners and clients: If you run a business outside the cultural sector and order creative material for your business activities, a general, clear transfer clause in your cooperation agreement is sufficient. You are not legally obliged to detail the price per form of exploitation or the exact duration in the contract to avoid a nullity. Of course, it remains a good practice recommendation to avoid misunderstandings.
• For freelancers and creative authors: Be aware that when you work on assignment for commercial companies outside the arts or culture sector, the legislature significantly relaxes your protections in terms of contractual form requirements. A lack of agreement on your compensation or duration in the contract will not result in its nullity, but may result in you transferring your rights globally and forever. You bear a great responsibility to negotiate sharp agreements on your licenses and compensation in advance yourself.

Frequently Asked Questions

Is my copyright contract valid if it doesn't include a price or term?
Yes, this contract is valid if it is a work that you have specifically commissioned and you are an entrepreneur operating in the non-cultural or advertising sector. The general, strict rule that these elements must be mentioned does not apply in this scenario.

Who is eligible for the more flexible rule when working on commission?
The legal exception applies only to natural or legal persons placing an order, provided that they are engaged in an activity in the non-cultural sector or in advertising, and the work is intended for this specific activity.

What happens if we do not include duration or geographic region?
Within the flexible exception rule for orders in the non-cultural sector, it is assumed, without specification, that rights have been granted worldwide and for the full term of copyright.

As a business, am I required to use or exploit the work ordered?
No, absolutely not. For commissioned works in the non-cultural sector, you are exempt from the legal exploitation obligation. As the client, you retain complete freedom to exploit the work or not, since you bear the business risk.

What happens if I do not expressly state the transfer of rights in the contract?
Even within the flexible non-cultural regime, the law still requires that the transfer (or licensing) of the economic rights be expressly provided for in the agreement. Without a clear transfer clause, the author retains ownership of the rights.

Conclusion

The Court of Cassation confirms legal breathing space for entrepreneurs in the non-cultural sector. For commissioned works, the strict formal requirements around determining duration and remuneration fall away. This provides legal certainty for clients in Belgium, but at the same time demands great contractual acuity from creative contractors.