Your studio contracts do not work. We are looking for a way out of the situation

When we deal with a freelancer and want to entrust him to create a program or design, texts for a website or another product (we will call this result an intellectual product for brevity), we follow one rule. When working with a freelancer, it is better not to enter into a contract or service contract, but an author order contract. This type of contract implies creation of the result of intellectual activity, ensures that the Customer has rights to the intellectual product and adequately reflects the essence of relations between the parties to the contract. After all, for the customer it does not matter how much time the contractor spent and in what torments the product was created. It is important that, as a result, the result meets the requirements of the Customer and the rights to it are transferred from the author to the payer. In other words, we pay not for the process, but for the result.

Formulation of the problem

But here's a nuisance. Such an excellent contract cannot be used when working with legal entities. The fact is that only natural persons can be authors under Russian law. A legal entity cannot create creative results, since it does not physically have a brain (sorry for physiological terminology) and, therefore, it is not able to think, imagine, invent. Authors will always be individuals, so we can not conclude a contract of author's order with a legal entity .
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How to solve the problem now?

If a legal entity declares that he has rights to an intellectual product and is trying to get money from him for you, then it must prove to you how it obtained these rights and present the relevant documents. One statement that the rights arose from a legal entity and it is responsible for their validity is clearly not enough.
Unfortunately, 90% of contracts of design agencies are sinful in this statement. The standard clause of the contract states that the agency has all intellectual rights and fully transfers them to its Customer. The customer is equally illiterate in legal matters and is pleased with the attractive wording.

But behind this formulation usually costs nothing, and in the case of a dispute it is difficult to prove anything. We have already described such a case in a different context.

Analysis of contracts of design agencies leaves a sad impression. We will not point the finger, but on average it is a mixture of contracts of labor and services, with conflicting conditions that do not reflect the essence of the relationship. A sort of "compote of letters," if you look at the text of the contract with a strict legal opinion. If the parties to the contract are satisfied with each other, then the compote will fulfill its function of formalizing the financial transaction, but when you are not lucky enough to quarrel and even go to court, it will be difficult to prove your case with an inadequate contract. Even if under the contract everything is done perfectly, then the problem may arise in the future and not with the party to the contract, but with the violator of the right to the intellectual product. And such a contract will not allow you to prove the emergence of your intellectual property rights and, therefore, to obtain its protection.

As a result, the Customer "acquires" the rights of others and pays for them the money is not the present holder. Agency - receives money for the rights of others and is illegally enriched.

Therefore, both the Customer and the Contractor are at risk. Such an illiterate contract, not reflecting the essence of the relationship, can take advantage of these authors. It is they who can make a complaint, firstly, to the Customer, who unknowingly, but nevertheless, illegally uses their result (after all, the rights were not transferred to the customer, even though he paid for them). Secondly, to the agency, because the authors did not receive an award (or actually received it, but this is either not executed in any way, or it is crooked and can be misused).

Which exit?

Let's first understand the essence of the chain of relationships: Customer - Agency - Author.

We had the author and the customer in the contract of the author's order, and if we remove the agency, we reduce the scheme to the contract of the author's order. In certain cases, this option with the exception of the agency from the scheme is the best way to solve the problem. Unfortunately, this method is not always applicable. And we are not looking for easy ways!

But there is a solution! We understand that the Agency plays the role of the organizer of the creation of an intellectual product. Several authors participate in the creation, who do non-uniform work and make a different creative and organizational contribution to the appearance of the product. And the Agency performs a management function, for which there is an established term in the creative environment - producing.

Producer takes the stage

In short, the producer analyzes the task, selects the team for implementation, distributes orders and controls their implementation, is responsible for the final result. This is not a creative activity, but it is also important: only with its help can you achieve results in creating non-trivial products (in the terminology of the law - complex intellectual property objects).
Legally - the producer himself acts as the Customer for individual authors and accumulates their rights to themselves. As a result, the rights to a complex product arise from him and he can legally transfer them to the Customer.

So, agency design is producers?

Strange as it may sound, but from a legal point of view, that is all. Do not be confused by the unusual name. The main thing is that it accurately describes the essence of relations in the chain Customer-Agency-Authors, and the terminology will become familiar after some time. We take the liberty and offer to call the contracts of agencies in accordance with their essence, that is, producer agreements.

The main conditions that distinguish the contract from the contract and the provision of services

The main obligation of the Agency in the production contract will be the organization of the process of creating an intellectual result, and not the provision of some mythical services or performance of work. Also a prerequisite of the contract will be the receipt of rights from individual authors (with the execution of relevant documents) and the transfer of all rights to the Customer.
For its part, the Customer understands what it is to demand from the Agency and does not pay if there is no result and documents on the rights to this result. In the case of the services and works of the Customer, there are perfect other levers of pressure on the Agency and they are not as effective.

Let's sum up

The production contract is an upgrade of the contract of the author's order with the addition of the figure of the organizer of the creation of an intellectual product. This type of contract is needed when the product is complex and requires the combination of the creative and other contributions of many participants.
The producer unites the efforts of several authors and persons providing organizational assistance, coordinates their activities and is responsible for the final result. By the way, the producer can be not only a legal entity, but also an entrepreneur, and just an individual.
The customer receives what he needs - an intellectual result and the rights to it, documented.
Authors are engaged in creative activities and are not wasted on organizational issues.
In a word - synergy (sorry for the bored term). And for the registration of this synergy, it is better to use a producer contract, than to use old crutches from a mixture of contracts for the provision of services and contract. In any case, we have laid out all the possible options in Habré .

The choice is always yours.

(c) Kirill Mityagin