First ruling on fair remuneration for authors

Do you collaborate with photographers, journalists, designers, or other creators? Then you will encounter copyright contract law: under the Copyright Act, a creator is entitled to fair remuneration when transferring or licensing their copyright. A rate that deviates significantly from industry customary can be corrected by a judge retroactively and increased with retroactive effect. This happened for the first time in 2019: two freelancers won proceedings against DPG Media and were awarded a higher rate. For entrepreneurs, the lesson is clear: establish market-based and carefully set the remuneration with creators immediately, before it costs you a tax assessment or legal proceedings.

What is fair remuneration for authors?

Fair remuneration is the reasonable payment to which a creator is entitled when granting another party permission to use their work or transferring their copyright. It is therefore not a non-binding guideline amount, but a statutory right enshrined in the Copyright Act. What constitutes “fair” in a specific case is not set out in the law as a fixed amount: this depends on the circumstances, such as the use made of the work and what is customary in the sector.

By “creator,” the law means the person who created the work: think of a photographer, copywriter, journalist, illustrator, designer, or programmer. As soon as such a creator gives you permission to use their work, this is, in principle, accompanied by fair compensation.

What is copyright contract law?

In 2015, a separate chapter on copyright contract law was added to the Copyright Act. The aim was to strengthen the contractual position of creators, such as authors, photographers, and other artists, vis-à-vis often much larger exploiters such as publishers and media companies. In practice, creators are frequently dependent on standard terms and conditions presented to them by the client, which rarely work to their advantage.

Copyright contract law regulates, among other things, that the creator is entitled to fair remuneration and, subject to conditions, additional compensation. Furthermore, extra options for terminating an agreement have been introduced, and unreasonably burdensome clauses are prohibited. A few years after its introduction, a judge examined these rules on their merits for the first time.

Right to fair remuneration (Article 25c Copyright Act)

Article 25c of the Copyright Act stipulates that the creator is entitled to fair remuneration for granting exploitation rights. This applies both to the granting of a license and to the transfer of copyright.

What exactly constitutes “fair” is not stipulated in the law as a fixed amount. That depends on the circumstances of the case. A judge considers, among other things:

• what is customary in the relevant sector (market rates);
• the scope of the granted exploitation authority (how extensively the work may be used);
• the nature and characteristics of the work and the work that precedes it.

Good to know: the core right to fair compensation remains fully in effect and persists even after recent legislative changes. However, the way in which sectors collectively agree on what constitutes “fair” may change over time. Therefore, if in doubt, seek advice regarding what is currently common practice in your sector.

The difference between fair compensation and supplementary compensation

In addition to fair remuneration, the law provides for supplementary remuneration. If, at a given moment, the agreed remuneration is no longer proportionate to the revenue from exploitation, the creator may request supplementary remuneration. Therefore, anyone who grants a license for a book that subsequently becomes a worldwide hit is not simply left with the limited remuneration from the original license agreement. This is an important point of attention for entrepreneurs: a one-off low rate does not always preclude a later claim.

The case of Rogier and Van Uem v. DPG Media (2019)

In a much-discussed case from 2019, photographer Ruud Rogier and journalist Britt van Uem each initiated proceedings against media company DPG Media (formerly De Persgroep). Their objection: the client was allegedly undermining the profession through structurally low rates. An earlier attempt to resolve the matter through the Disputes Committee on Copyright Contracts failed. The cases thus became a textbook example of the unequal power dynamic that often characterizes the sector.

Rogier criticized a rate of approximately 42 euros per photo. For this, a photographer has to make arrangements with the editorial staff, shoot on location, post-process the photo, archive it, and invoice—already easily two to three hours of work per assignment. After deducting insurance and other costs, he argued that too little was left to live on. Van Uem, who received a word rate of about 13 cents, also went to court and demanded a higher, fair word rate.

What did the judge rule?

For these cases, the judge had the customary market rates mapped out . This revealed that other publishers were charging higher rates for both photos and words at the time. Based on that market comparison, the judge ruled that DPG Media's rates were not fair and increased them by approximately 50% , to the order of 0.21 euros per word and 65 euros per photo . DPG Media was ordered to pay the difference for the assignments in question. However, the creators did not receive the full, even higher amount they had originally claimed.

It was the first time that a judge gave concrete substance to fair remuneration since the introduction of copyright contract law. The exact amounts are explicitly linked to this specific case and the market rates at the time; they are therefore not a fixed standard for other sectors or subsequent years.

Why this is relevant to you as an entrepreneur

If you collaborate with makers, this is not a distant issue. The most important consequences at a glance:

• A rate that is too low can be corrected. If the fee deviates significantly from what is customary in the industry, you run the risk of a back payment.
• A one-time “agreement” is not always the end. Through the additional fee, a creator can still apply later if the work yields much more than expected.
• Unreasonable clauses do not hold up. Conditions that disproportionately disadvantage the creator may be annulled.
• Legal proceedings and additional tax assessments cost money and time. Preventing a dispute is almost always cheaper than fighting it out.

If you do end up with an unpaid additional tax assessment or an outstanding invoice regarding your collaboration, it is wise not to let this slide. Read how we help entrepreneurs with the collection of outstanding debts.

Properly stipulate fair compensation in your contract

If you use the work of photographers, copywriters, designers, or other creators, carefully document the agreements. Keep the following steps in mind:

1. Map out what is common practice in your sector. Compare your rate with market-standard fees.
2. Determine the scope of use. May the work be used once, for an extended period, online, in print, or worldwide? The broader the use, the higher the fair remuneration generally turns out to be.
3. Choose consciously between a license and a transfer. A license agreement grants the right of use, while a deed of transfer transfers the copyright.
4. Document it in writing. A clear contract for services prevents misunderstandings regarding compensation, use, and rights.
5. Have the contract legally reviewed. This will help you avoid unreasonable or void clauses and a subsequent claim.

Frequently asked questions about fair remuneration for creators

What is fair remuneration in copyright law?

Fair remuneration is the reasonable payment to which a creator is entitled under Section 25c of the Copyright Act when he transfers or licenses his copyright. What is fair depends on what is customary in the sector, the extent of use, and the characteristics of the work.

Does fair remuneration also apply to self-employed professionals and freelancers?

Yes. The scheme protects creators, and that includes independent photographers, journalists, designers, and other creative professionals. In the cases against DPG Media, two freelancers actually won their proceedings.

Can a rate that is too low be adjusted retroactively?

That is possible. If a rate is not considered fair, a judge can correct it and award higher compensation, possibly with back payment. In the cases against DPG Media, the rates were increased by approximately 50%.

What is the difference between a license and a transfer of copyright?

With a license, you grant permission to use the work, but the copyright remains with the creator. With a transfer, the copyright itself passes to another party. In both cases, the creator is entitled to fair remuneration.

What should I do as a client to prevent problems?

Agree on market-based compensation, clearly stipulate how the work may be used, and make a conscious choice between licensing or transfer. If in doubt, have the contract legally reviewed.

Does copyright contract law also apply if the creator agreed to the rate?

Yes. Even if a creator agreed earlier, a rate can later be deemed unfair. One-time agreement to a low amount does not always preclude a correction or additional compensation.

Are there fixed rates for fair compensation?

No. The law does not specify a fixed amount, and the rates from the DPG Media cases are not a general standard. What is fair is determined on a case-by-case basis, taking into account current market rates and circumstances. Therefore, seek advice regarding what is currently common practice in your industry.

Need help with contracts with makers?

MKB Juristen helps entrepreneurs legally formalize agreements with photographers, journalists, and other creators to ensure compliance with copyright contract law. Do you want to know if your agreements comply, or do you have a specific copyright dispute? Read more about our approach to copyright and contract law, or view our legal assistance. Schedule a no-obligation intake meeting and present your situation to us.