Spain and Mexico both have a version of the “work made for hire” idea, but they work very differently. In Spain, works created by employees belong to the employer only as far as the written contract says or, failing that, to the extent needed for its usual business, and there is no presumption at all for freelancers. In Mexico, the party that commissions a work holds the economic rights unless agreed otherwise, but works made by employees are split equally with the employer when there is a written contract. This guide is for groups with teams, agencies or contractors in both countries.
Key takeaways
- Neither country has a full US-style work made for hire rule: the author is always the natural person who creates the work.
- Spain presumes an exclusive assignment to the employer only for employees and only for its usual activity (art. 51 TRLPI).
- Mexico gives commissioned works to the commissioning party (art. 83 LFDA), but employee works other than software are split 50/50 if there is a written employment contract (art. 84).
- Software written by employees belongs to the employer in both countries, unless agreed otherwise.
- Moral rights stay with the author in both systems and cannot be assigned.
Is there a work made for hire rule in Spain and Mexico?
Not in the US sense, where the employer or commissioning party is treated as the author. In Spain, the author is the natural person who creates the work (TRLPI, art. 5), and rights arise from the mere fact of creation (art. 1). Mexico’s Federal Copyright Law (LFDA) also defines the author as the natural person who has created the work (art. 12) and makes the author the sole, original and perpetual holder of moral rights (art. 18).
What both laws do is allocate the economic rights, the ones a business needs to exploit a work, through presumptions and contract rules. Those rules decide who can use, license or sell the work.
Works by employees: Spain’s article 51 TRLPI
Article 51 TRLPI sets three layers:
- The transfer of economic rights to the employer is governed by the employment contract, which must be in writing.
- Without a written agreement, the economic rights are presumed assigned in exclusivity and to the extent needed for the employer’s usual activity at the time the work is delivered.
- The employer can never use the work for purposes beyond those two rules.
The practical consequence is that the presumption is frozen in time. If a marketing employee creates illustrations for a catalogue and the company later wants to license them for merchandise, a business it did not have at delivery, the presumption may not cover it. Software is the exception: under article 97.4, the economic rights in programs created by employees in their duties belong exclusively to the employer, in source and object code, unless agreed otherwise.
Commissioned works and freelancers in Spain
There is no presumption for works commissioned from freelancers, agencies or studios. The general rules on transfers apply:
- Any assignment must be formalised in writing (art. 45).
- It is limited to the rights and modes of exploitation expressly stated and to the time and territory set (art. 43.1).
- If the contract is silent on time, the transfer is limited to five years; if silent on territory, to the country where it is made (art. 43.2).
- A global assignment of all future works of an author is void (art. 43.3), and new modes of exploitation unknown at the time are not included (art. 43.5).
The exception is the collective work, created at the initiative and under the coordination of a person who publishes it under its own name, where the rights belong to that person unless agreed otherwise (art. 8).
Commissioned works in Mexico: article 83 LFDA
Mexico takes the opposite starting point for commissions. Under article 83, unless agreed otherwise, the person who commissions a work, or produces it with the paid collaboration of others, holds the economic rights and the powers of divulgation, integrity and collection over it. The paid contributor keeps the right to be credited as author. Article 83 bis adds that, for a work to be treated as commissioned, the contract terms must be clear and precise, and any doubt is resolved in favour of the author.
Two general rules still apply to any transfer of economic rights: it must be onerous and temporary and made in writing, or it is void (art. 30), and without an express term it lasts five years, with more than 15 years only exceptionally (art. 33). Transfers must also be recorded in the Public Copyright Register to have effect against third parties (art. 32).
Employee works in Mexico: the 50/50 rule of article 84
This is the rule that surprises European groups. For works created in the course of an employment relationship under a written individual employment contract, article 84 presumes, unless agreed otherwise, that the economic rights are divided equally between employer and employee. The employer may publish the work without the employee’s authorisation, but not the other way round. Without a written employment contract, the economic rights belong to the employee.
Software follows its own rule. Under article 103, unless agreed otherwise, the economic rights in a computer program and its documentation created by employees in their duties or following the employer’s instructions belong to the employer, and the assignment of rights in software is not subject to the general time limit.
Spain vs Mexico at a glance
| Situation | Spain (TRLPI) | Mexico (LFDA) |
|---|---|---|
| Employee works (general) | Written contract governs; otherwise presumed exclusive assignment for the employer’s usual activity (art. 51) | With written contract, presumed 50/50 split; without it, the employee owns the economic rights (art. 84) |
| Employee software | Employer, unless agreed otherwise (art. 97.4) | Employer, unless agreed otherwise (art. 103) |
| Commissioned works | No presumption; written assignment needed (arts. 43 and 45) | Commissioning party, unless agreed otherwise (art. 83) |
| Assignment silent on duration | Five years (art. 43.2) | Five years (art. 33), except software (art. 103) |
| Form | Writing required (art. 45) | Writing required, or void (art. 30) |
| Moral rights | Inalienable and unwaivable (art. 14) | Inalienable, imprescriptible and unwaivable (art. 19) |
What this means for your business
- Inventory who creates content, code and designs for each company in the group, and under what kind of contract.
- Add an express IP clause to employment contracts in both countries, listing the rights, uses, territory and duration you need.
- In Mexico, make sure every creative employee has a written individual employment contract and that it displaces the 50/50 presumption.
- For freelancers and agencies, use written commission and assignment agreements that meet both laws, including article 83 bis in Mexico.
- Record key transfers in Mexico’s Public Copyright Register and consider registering the works themselves in both countries.
Our team for copyright ownership and work made for hire agreements in Spain and Mexico can align one set of templates with both laws.
Where groups operating in Spain and Mexico get it wrong
- Using the Spanish employment template in Mexico. Without an express clause, the Mexican employee may hold half the economic rights.
- Assuming freelancers’ work belongs to the client in Spain. Without a written assignment it does not, and a vague one may be limited to five years and one country.
- Vague commission contracts in Mexico. Under article 83 bis, unclear terms are read in the author’s favour.
- Ignoring later uses. Spain’s employee presumption only covers the employer’s usual activity at the time of delivery.
- Forgetting registration. In Mexico, an unrecorded transfer has no effect against third parties.
When the issue appears in a deal, the cost of fixing it rises quickly. Our IP assignment and licensing team can prepare confirmatory assignments before a transaction or a launch.
Frequently asked questions
Does the employer own works created by employees in Spain?
Only partly. Article 51 TRLPI applies the written employment contract and, if there is none, presumes an exclusive assignment of economic rights limited to what the employer needs for its usual activity when the work is delivered. Uses outside that scope are not covered. Software is different: article 97.4 gives the economic rights to the employer unless agreed otherwise.
Who owns a commissioned work in Mexico?
Under article 83 LFDA, unless agreed otherwise, the person who commissions the work holds the economic rights and the powers of divulgation, integrity and collection, while the author keeps the right to be credited. Article 83 bis requires clear and precise contract terms and resolves doubts in favour of the author, so the commission agreement should be explicit.
Do Mexican employees keep rights in their work?
Often, yes. For works other than software, article 84 LFDA presumes that economic rights are split equally between employer and employee when there is a written individual employment contract, and belong entirely to the employee when there is none. An express contractual clause is the way to give the employer full ownership.
Can IP Global Guard align our contracts in Spain and Mexico?
Yes. We review employment, freelance and agency agreements, draft IP clauses and assignments that work under both laws and coordinate qualified local correspondents in Mexico for registration of transfers with the Public Copyright Register. You get one set of documents and one point of contact for the whole group.
How IP Global Guard secures ownership across Spain and Mexico
Ownership gaps rarely show until someone wants to license, sell or enforce the work. IP Global Guard, the intellectual property services line of META Channel Corporation Limited, works across more than 25 jurisdictions in Europe, Latin America and Africa, with one strategy and one billing relationship for copyright, contracts and registration.
Share your current employment and freelance templates for Spain and Mexico, and tell us which works matter most. We will flag the gaps under each law and propose a single set of clauses and assignments. Get in touch with our copyright team.
This article is general information, not legal advice, and does not replace an assessment of your specific situation.
