The question of who owns the rights to design and software within a company is legally complex and highly relevant in practice. Uncertainties frequently arise, particularly when working with employees, freelancers, or agencies — sometimes involving significant economic risks. As an attorney and specialist lawyer for intellectual property law, I would like to provide an overview of the key legal principles and illustrate typical practical scenarios.
Basic Principle: The Author Always Remains the Creator
Under German law, one fundamental principle applies:
The author is always the natural person who created the work.
This applies in particular to:
- Software (computer programs)
- Graphic design (logos, layouts, UI/UX)
- Texts and content
This means:
A company is never automatically considered the author, even if the work was created within a business context.
Rights to Software Within a Company
Software Created by Employees (§ 69b German Copyright Act)
Software is subject to an important special rule:
If software is created by an employee within the scope of their employment duties, the economic exploitation rights automatically transfer to the employer.
Requirements:
- Creation within the scope of contractual employment duties
- No deviating contractual agreement
Advantages for companies:
- No separate transfer of rights required
- Clear legal framework for internal development
Software Created by Freelancers or Agencies
The situation is different when external service providers are involved:
- Freelancers generally remain the owners of all rights
- Companies only receive the usage rights expressly agreed upon
Typical issues:
- Usage rights are not explicitly regulated
- No provisions regarding modifications or further development
- Restrictions on commercial use
Important:
Without a clear contractual agreement, only those rights necessary to fulfill the contract are deemed transferred (“purpose transfer doctrine” under German copyright law).
Rights to Design (e.g. Logo, Website, UI)
No Automatic Transfer of Rights
Unlike software, there is no statutory special rule for design work created by employees.
This means:
- Employees also remain the authors
- Usage rights must be regulated through employment contracts or supplemental agreements
Typical Design Services
This includes in particular:
- Logos
- Corporate design
- Website layouts
- User interfaces (UI/UX)
Without clear agreements, the following risks may arise:
- A logo may not be freely usable
- Modifications may become legally problematic
- Trademark registration may fail
The Role of Usage Rights
Since copyright itself cannot be transferred under German law, the granting of usage rights is crucial.
Important distinctions include:
- Non-exclusive usage rights
- Multiple parties may use the work
- Exclusive usage rights
- Only the company may use the work
- Territorial / temporal / content-related limitations
- e.g. limited to Germany or only for a specific campaign
Recommendation:
Companies should generally secure exclusive, unlimited usage rights in terms of time and territory.
Practical Examples
Case 1: Freelancer Develops Company Software
A start-up hires a developer without a detailed contract.
Problem:
- The developer remains the rights holder
- Usage beyond the original purpose is unclear
Risk:
- Disputes during resale or investor due diligence
Case 2: Logo Created by an External Agency
An agency designs a logo, but the agreement does not contain a clear transfer of rights clause.
Consequences:
- Use may be restricted
- No exclusive usage rights
- Risks during trademark registration
Case 3: Employee Designs a Website
An employee creates a website design.
Result:
- Usage rights may belong to the employer — but only if covered by the employment contract
- Unclear agreements create legal uncertainty
Typical Mistakes Made by Companies
- No written agreements with freelancers
- Unclear or overly restrictive usage rights
- Missing provisions in employment contracts
- No rights audit for existing projects
- Assuming that payment automatically transfers rights
Recommendations for Companies
Draft Clear Written Agreements
- Clearly regulate usage rights
- Agree on exclusive rights
- Include rights for modifications and further development
Review Employment Contracts
- Include provisions relating to creative work
- Ensure connection to the employee’s scope of duties
Document Rights Properly
- Maintain evidence of the chain of title
- Important for investors, company sales, or due diligence processes
Support for Drafting Usage Rights Agreements
Rights to design and software do not automatically belong to the company, but fundamentally remain with the creator. While statutory simplifications exist for software created within employment relationships, the legal requirements for design work are considerably stricter.
The decisive factor is therefore always this: A clear, comprehensive, and written contractual agreement regarding usage rights.
As a specialist lawyer for intellectual property law, I support start-ups, entrepreneurs, and companies in the legally secure drafting of contracts as well as the transfer and protection of usage rights relating to software, designs, trademarks, and digital products.