Who owns your designer's work? Employer's copyright in fashion

A designer on the payroll or a freelancer draws your collection. Who holds the rights now that the ONB judgment has put employer's copyright under pressure?

A designer on your payroll draws the new collection and a freelancer supplies the print. As long as the pieces sell, nobody asks who actually owns the designs. The question only comes up when the designer leaves to start a label of their own. Or when it turns out that a freelancer has sold the same design to another brand as well. Under Dutch law, employer’s copyright then proves less straightforward than many fashion brands assume. Since a judgment of the Court of Justice of the European Union in March 2025, it has also been called into question. If you’re a designer yourself, the last part of this article sets out what you keep of your own work.

Do you want to know who holds the rights in your collection? Call 020 675 88 21 or send us a message using the form at the bottom of the page.

Employer’s copyright makes the employer the author of a design

Employer’s copyright under Article 7 of the Dutch Copyright Act (in Dutch) provides that an employer counts as the author of works an employee makes in the course of employment, unless employer and employee agree otherwise. Dutch lawyers call this deemed authorship, because the law treats someone other than the actual creator as the author. It only covers what is part of the job. If a designer paints at the weekend, those canvases simply remain the designer’s.

Design law takes the same line. Where an employee creates a design in the performance of their duties, the employer counts as the designer of the Benelux design and also acquires the copyright in that design (Articles 3.8(1) and 3.29 of the Benelux Convention on Intellectual Property, in Dutch). The right to an EU design also goes to the employer in that situation, as it does for a design the employee develops following the employer’s instructions (Article 14(3) of the EU Design Regulation). In each case the parties can agree otherwise.

A clothing design only attracts copyright if the designer’s free and creative choices can be seen in it. In Mio/konektra, on 4 December 2025, the Court of Justice held that works of applied art are not subject to stricter requirements than other works. Our page on protecting a clothing design explains how that works out for clothing.

Why employer’s copyright has been in question since a European judgment

On 6 March 2025 the Court of Justice gave judgment in a case about musicians of the National Orchestra of Belgium, known as the ONB judgment (C-575/23, ECLI:EU:C:2025:141). After negotiations over remuneration had broken down, the Belgian State provided by royal decree that the neighbouring rights of musicians employed under a public-law status would pass to the orchestra. According to the Court, that is not allowed without the musicians’ prior consent. That consent has to come from individual or collective negotiations or, for musicians with a public-law status, from a regulatory act of the state itself. Member States may lay down the detailed rules, provided they don’t undermine the principle of prior consent (paragraphs 122 to 124).

The judgment concerns performers and only mentions the EU provisions that apply to them, so the Court does not say whether the same reasoning holds for a fashion designer in employment. Our article on the limited significance of the ONB judgment takes the view that the Court’s reasoning applies to copyright too. According to that article, Article 7 nonetheless survives, because employer and employee can always agree otherwise. Article 8 of the Dutch Copyright Act is a different matter.

That Article 8 is exactly the one that touches fashion. If a company makes a work public as its own without naming a designer, the company counts as the author. Many brands present their collection without the designer’s name, so the provision looks convenient. Don’t rely on it, because the same article concludes that Article 8 can no longer be reconciled with EU law after the ONB judgment.

Three scenarios from the Dutch Copyright Committee for Articles 7 and 8

In January 2026 the Dutch Copyright Committee, which advises the Ministry of Justice and Security, published advice on the consequences of the ONB judgment (in Dutch). A majority of the committee expects the Court of Justice to leave no room for an employer as author, because EU law appears to mean by an author the natural person who created the work. The committee sees a real solution only at EU level.

For the meantime it sets out three scenarios, without expressing a preference. The lightest touch keeps Articles 7 and 8 and gives employed designers additional rights, such as a claim to equitable remuneration. If the legislature goes a step further, the employer is no longer the author and the law presumes that the designer has transferred the rights. The third scenario repeals both articles, after which employers and clients would have to arrange everything themselves in contracts or collective agreements. The committee calls that the safest route, although it may bring more administrative burden.

This site earlier set out a fourth scenario, in which only Article 7 becomes a presumption of transfer and Article 8 is repealed or recast as an authorisation to take action against infringement. As of 2 November 2026 there was no bill yet and the Dutch government had not responded to the advice.

With a freelance designer, copyright and the EU design can end up with different parties

Article 7 doesn’t apply to freelancers, but Benelux design law does have a rule for the client. If you commission a design with a view to selling the product, you count as the designer of the Benelux design and you also acquire the copyright in that design, unless you agree otherwise (Articles 3.8(2) and 3.29 of the Benelux Convention). According to the Dutch Copyright Committee, that copyright only covers the design as it is applied in the registered or unregistered design. For other uses it stays with the freelancer.

The EU Design Regulation has no rule for the client. The right to an EU design belongs to the designer and only passes to the employer in the case of an employee (Article 14(1) and (3)). So you may hold the copyright in a dress while the freelancer keeps the unregistered EU design. If you sell in several EU countries, that EU design is often the right that matters most for seasonal pieces. The Dutch Copyright Committee points out this clash in its advice, but leaves the solution to the legislature.

If you want the EU design in your own name, the freelancer has to transfer it to you. Put that in writing, together with the transfer of the copyright in so far as Benelux design law hasn’t already given it to you. For copyright, since 1 January 2026 the agreement to transfer has to be entered into in writing. A transfer by the author also covers only what is expressly stated in it or necessarily follows from it. The assignment itself is still made by deed (Article 2(3) of the Dutch Copyright Act). The rump of a cow and the transfer of copyright explains what that writing requirement means in practice.

Equitable remuneration and the designer’s moral rights

If a freelance designer transfers rights or grants a licence, the designer is entitled to equitable remuneration (Article 25c(1) of the Dutch Copyright Act). For a designer in employment that chapter of the Act doesn’t work, because Article 25b(3) disapplies it for the author under Articles 7 and 8. Under Article 7, that author is the employer. The Dutch Copyright Committee considers that this has to change after the ONB judgment, because the EU rules on authors’ contracts also apply to people who lose their rights by operation of law.

Then there are the moral rights under Article 25 of the Dutch Copyright Act (in Dutch). A freelancer keeps them even after a transfer, including the right to object to a distortion of the design. The designer can waive the right to object to other alterations, but not the right to object to a distortion (Article 25(3)). For a designer in employment it is disputed who holds the moral rights, because the law designates the employer as the author. In the first two scenarios the committee asks the legislature to clarify this.

What a fashion brand should put in writing with its designers now

There’s no need to wait for the legislature. Don’t rely on employer’s copyright alone, but agree expressly in the employment contract that the rights in designs the designer makes in employment belong to the brand and that the designer otherwise transfers them to the brand. That gives you the prior consent the Court asks for on paper, whichever scenario the legislature chooses. With a freelancer, you set out in the commission and in a deed which rights pass, the EU design included. If a designer comes up with the label name or the logo, also agree who registers the trade mark, because the right in a trade mark goes to whoever registers it (Article 2.2 of the Benelux Convention).

Our page on assigning copyright explains what an assignment looks like and what belongs in the deed. Under fashion law you’ll find how design, brand and contracts fit together in fashion.

Taking your work with you to your own label as a designer

For the designer it works the other way round. Under the law as it stands, what you design in employment belongs to your employer, unless you have agreed otherwise. If you start your own label with designs from your previous job, you infringe, even if you drew them yourself. Your portfolio is a sensitive point too, because you make the designs public as soon as you put them online. For that you need your former employer’s consent. Agree on it when you leave.

As a freelancer you keep the copyright and the EU design unless you have transferred them in writing. If the client commissioned the design in order to sell it, the Benelux design and the copyright in that design can lie with that client after all.

An earlier version of this article appeared in Dutch in September 2025 in the Rechtspraak column of FashionUnited.

Would you like your contracts with designers reviewed or to know what you keep of your own work? Call 020 675 88 21 or send us a message using the form below.