Artists and cultural workers who only enter Austria for a one-day performance or an artistic production lasting a maximum of 8 weeks and are employed for this purpose by an employer in Austria do not need a work permit under certain conditions. Their employers only need to report their employment. 

Self-employed artists do not need a work permit in advance. 

Attention: Independent of this, you still need to find out whether you need a visa. See below for more information.

This special rule applies to the following groups of artists:

• Concert or stage artists
• Artists
• Film, radio, and television professionals
• Musicians

Artists and cultural workers in these sectors do not require a work permit if they are employed by an event organiser in Austria

• for one day (e.g. a single concert), or
• for a maximum of eight weeks as part of an overall artistic production (e.g. an ongoing film production, the preparation of a concert, a theatre production including the performance).

and their employment serves to secure the event or the overall production. This means that the achievement of the artistic project is not possible without this artist. 

Some examples of a one-day performance include, for example: 

• Concerts
• Events
• Theatre performances
• An appearance on a live radio or television programme

Your employer in Austria must notify the responsible regional office of the Public Employment Service (AMS) of your employment as a short-term employee no later than the day you start work (obligation to notify). An informal email to the relevant "Foreigners' Employment Centre (Ausländerfachzentren" of the AMS is sufficient for this purpose. Copies of passports as well as dates of arrival and departure of the artists and cultural workers involved should be attached.

This regulation allows artists and cultural workers to carry out several consecutive jobs with different employers in Austria without needing a work permit. 

Example: You are an orchestral musician and go on tour in Austria. You are hired once by the Volksoper, once by the opera house in Graz, and once by the Salzburg Festival for one event each. As these are only one-day events and you are employed by three different employers, you do not need a work permit. 

Example: You are a performance artist from Nigeria and are employed by a theatre for 8 weeks in March to prepare and perform your show. In June, you are employed by another theatre for another 4 weeks to prepare and perform your performance again. You do not need a work permit because you will be employed twice by two different employers for an artistic production lasting a maximum of 8 weeks. 

You will need a different visa depending on the period in which the individual day events/complete productions take place with different employers:

• Within a period of 3 months: type C visa (gainful employment)
• Within a period of 6 months: type D visa (gainful employment)

Attention: Even if people of your nationality are authorised to enter the country without a visa as tourists, you will need a type C or D visa for such employment activities. A tourist visa is not sufficient.

Example: You are part of an Indian film team and are to shoot a scene for a feature film in Tyrol for 3 weeks for an Austrian producer. No work permit is required for you or any of your colleagues (including the technical and administrative support staff), but you will need a type C visa to enter and stay in Austria. The producer must notify the AMS of your employment.

Artists who already have a permanent settlement permit in Austria can also work on a short-term basis in this way

Example: You are a singer from Jamaica and are permanently active as a self-employed artist in Austria. You already have a residence permit for this activity (artist). The Austrian Broadcasting Corporation (ORF) would like to hire you to develop a CD for 8 weeks. You do not need another permit to carry out this additional employed activity, but the ORF does need to report your employment.

If you would like to stay in Austria for up to three months and need temporary gainful employment:

• Type C visa (gainful employment)
• If you would like to work on an employed basis, you need a work permit; employers can apply for a security certificate in advance to avoid time-consuming communication between the embassy and the Public Employment Service (AMS).
• If you are self-employed, you do not need a work permit  However, you must register with the tax office and, if you want to practise a trade, you need a trade licence. See the chapter on labour law. 

The security certificate confirms to your employer that you will receive a work permit from the Austrian authorities as soon as you have been issued with the appropriate visa and are therefore authorised to stay in Austria. The security certificate must be applied for by your employer at the regional office of the Austrian Public Employment Service (AMS). 

Attention: It is important that you do not start working until you have a work permit. Otherwise, you will be reported to the financial police during an inspection. 

Your visa application will only be processed immediately once the AMS has issued the security certificate and sent it to the representation authority abroad (embassy or consulate). If your visa is approved, your employer will receive your work permit after you enter the country.

Info: If you will be working as an intern in Austria, your employer only needs to report your activity to the AMS and does not need to apply for a work permit and safety certificate. However, in this case, you are not allowed to receive any form of remuneration, making internships very rare.

As a basis, you must fulfil the same requirements for all residence permits:

• You need to prove you have a secure livelihood. This means that your financial resources must be sufficient in order to reach the required amounts.
• You must have accommodation.
• You must have health insurance coverage.

There must be no threat to public order or security.You must submit the following documents when applying for your residence permit: 

• Completed application
• Valid passport
• Birth certificate or corresponding document
• For first-time applications: extract from the criminal record
• Current passport photo (not older than 6 months; format: 45x35mm)
• If applicable: marriage certificate, partnership certificate, certificate of adoption, certificate of divorce, deed of dissolution of the registered partnership, death certificate
• Proof of a secure livelihood
• (mostly) Proof of locally customary accommodation
• Proof of health insurance coverage

People who come from countries outside of the EEA are also called third-country nationals. 

Info: Switzerland is neither part of the EU nor the EEA and is therefore, strictly speaking, a third country. However, Swiss nationals are largely on an equal footing with EU citizens thanks to international treaties, meaning that Switzerland is not considered a third country in the scope of labour law. 

Access to the labour market is regulated differently for artists and cultural workers from third countries than for EU/EEA citizens. However, as soon as third-country nationals are legally resident in Austria and have a work permit, they have the same labour law rights as everyone else.

If, as an artist or cultural worker, you hold the nationality of a third country, you need the following:

• Permission to stay in Austria (visa or residence permit, depending on the length of stay). See the chapter on visas and residence. Residence and settlement of third-country nationals is regulated in the Settlement and Residence Act (NAG), the Federal Act on the Exercise of Aliens’ Police (FPG), and the Asylum Act (AsylG).
• A work permit in accordance with the provisions of the Federal Act on the Exercise of Aliens’ Police (AuslBG; or a residence permit with free access to the labour market). If you work in the context of
  • salaried employment (e.g. an employment contract as a labourer or employee),
  • an employee-like relationship (e.g. a so-called freelance contract), provided that the activity is not carried out on the basis of trade law regulations, or
  • a training relationship (e.g. internships or traineeships. Be aware that as long as there is no entitlement to remuneration, no authorisation is required),
• your future employer must submit an application for a permit to the Public Employment Service (AMS). The permit is issued for a maximum of one year and is valid for the entire federal territory (a new application is required if your job changes).
  There are exceptions, e.g. if you are only employed in Austria for a one-day artistic performance. See the chapter on visas and residence.
• If you want to be self-employed, you do not need a work permit (be aware that even if you are self-employed, you must comply with the legal provisions for foreign nationals).
  • "New self-employed” people who earn a taxable income but do not run a business are subject to income tax. You must register with the Austrian tax office to obtain a tax number and register at Finanzonline, their online portal
  • If you want to run a business, you also need a trade licence. You can find details on this in the section "Do I need a trade licence?". 

Certain relatives of Austrians, EU/EEA citizens, and Swiss citizens are excluded from the scope of application of the Act Governing the Employment of Foreign Nationals. No work permit is therefore required for

•  third-country national spouses/registered partners with the right to reside in Austria, and
• children (including adopted children and stepchildren) with the right to reside in Austria who are under the age of 21 or receiving maintenance.

Upon request, the AMS must provide these people with a statement to confirm that they can work in Austria without a work permit.

Special rules for artists 

Artists from third countries are provided with a residence permit, "Settlement Permit - Artist", which authorises temporary settlement and the pursuit of gainful employment or self-employment. 

• Employment: as an artist who is a third-country national, an application for a "Settlement Permit - Artist" must be submitted together with a written declaration from your future employer before you enter Austria. It must either be submitted by the artist to the competent Austrian representation authority abroad (embassy or consulate), or to the AMS by the employer in Austria. Applications for family members can also be submitted at the same time.
• Self-employment: in order to obtain a settlement permit as a self-employed artist, your activity must consist primarily of artistic creation. You must be able to prove that you can earn your living from this activity and provide evidence of the contracts underpinning this activity, your artistic training, or a description of your previous artistic activity.

Special features: 

• Artists do not require a work permit for work lasting up to eight weeks as part of an overall artistic production (e.g. concert, theatre performance). It is possible for them to carry our several consecutive jobs with different employers without a permit.

Self-employment is an option when working in any field of art. Visual artists tend to work independently because they usually create works of art for a fee or sell finished paintings. However, stage and costume designers, cabaret artists, and book authors are also usually self-employed. Writers who perform readings or musicians who regularly perform in various concert halls are self-employed, too.

If you are self-employed as an artist, you conclude contracts for work and labour with your clients. If you undertake to produce a specific work in return for payment, this is a contract for work and labour. The only thing that matters is the agreed result. How you achieve this result is—unlike with employment contracts—solely your decision. 

If you conclude a contract for work and labour, you are an entrepreneur and therefore personally independent. The characteristics of a contract for work and labour and self-employment are:

• You have your own business infrastructure and your own resources (e.g. depending on the type of art, you have a website, a studio, a rehearsal room, a recording studio, your own instruments, your own equipment);
• You have regularly changing clients;
• You will not be integrated into any company;
• You owe a certain success;
• You have (artistic) creative freedom; you decide for yourself how to achieve this success;
• You may call in employees or subcontractors;
• You warrant that your work is free from defects;
• If your work fails, you are responsible for it. 

Example: You play in a band and an organiser hires you for a concert. Although the venue and time are specified or negotiated, there is no integration into the organisation. In terms of content, you can design the programme yourself with your band and possibly hire a substitute. You and your band members act independently on your own account, and at your own risk. This is a contract for work and labour.

As there is no employment relationship, self-employed workers do not have any labour law entitlements such as holidays or continued payment of remuneration in the event of illness.

However, there are other legal bases that are intended to guarantee that self-employed people are paid appropriately. The Copyright Act is one such example. 

• If other people wish to use copyrighted works, they must pay the artist a reasonable fee. A fee is reasonable if it corresponds to what is customary and fair in business transactions, taking into account all circumstances for the granted utilisation options.
• In addition, artists must participate in the resale of their artworks in certain conditions. If auction houses, art dealers, or galleries sell a copyrighted work of art, they must pay a certain percentage of the sales price to the artist if the sales price totals at least €2,500 ("resale right"). 

For detailed information, see the chapter on copyright law. 

According to social security law, there are major differences between employees and self-employed workers. Artists who work on a self-employed basis are generally "new self-employed” people. This means that they are compulsorily insured due to their self-employed activity, without being a member of the Economic Chambers (the statutory legal representative of self-employed people’s interests). For more detailed information, see the chapter on social security.

In Austria, there are certain self-employed activities that are classified as trades and thus require a trade licence. For this reason, it is advisable to obtain information from the competent trade authority as to whether a trade licence is required for the intended activity. More detailed provisions can be found in the Austrian Trade Act (GewO)

Need for a trade licence: a trade licence is required for activities that primarily require manual skills. 

• This means that you practise a arts and crafts. These include, for example, cabinetmakers, blacksmiths, or gilders.
• People engaged in arts and crafts are compulsory members of the Economic Chambers, the organisation representing the interests of the self-employed ("compulsory membership").
• People who practise arts and crafts are not considered artists under social security law. The special social security regulations for artists, such as benefits from the Artists' Social Insurance Fund, therefore do not apply to them. You can find out which special social security regulations apply to artists in the chapter on social security. 

No trade licence required: you do not need a trade licence for certain activities for which artistic skills are predominantly important. 

• The artistic, "creative" activity is therefore in the foreground (e.g. works of visual art, plays, pieces of music).
• This creative, intellectual activity is in the public interest. It should therefore enjoy a certain degree of state independence and be exercised with as little control and influence as possible.
• Artists who are self-employed and do not exercise a trade are considered to be "new self-employed" under social security law. They do not have to be members of the legal representation of interests (the Economic Chambers).
• Under insurance law, artists enjoy certain special regulations as "new self-employed" people, such as the option to report their self-employed activity as dormant. See the subchapter on the Artists' Social Insurance Fund.

 

Example: You are a landscape photographer and take artistic photos to sell later. You are classified as "new self-employed" because your artistic, creative activity is in the foreground. You are not a member of the Economic Chambers and do not need a trade licence.

Example: You are a fashion photographer and are commissioned to take photos of models in specified clothing according to a concept determined by the client. You are a commercial photographer and are subject to compulsory membership of the Economic Chambers. You need a trade licence.

 

In Austria, a distinction is made under social security law between three categories of self-employment:

a) "New self-employed” people: this includes people who offer services for which you do not need a trade licence: e.g. artists, journalists, writers.

b) Tradespeople: self-employed people who require a trade licence for their activity, so-called "old" self-employed people.

c) Freelancers: these are people who practise "liberal professions" for which you do not need a trade licence. However, their activities are associated with a high level of responsibility and are of particular public interest (e.g. doctors, pharmacists, lawyers). Rules for these professional groups are regulated in special laws. Freelancers must be members of their own statutory interest groups (e.g. medical association, chamber of pharmacists, bar association).

In the past, only people who were members of statutory interest groups—i.e. only freelancers or tradespeople—were compulsorily insured and covered under social security law. This has changed with the introduction of the "new self-employed": now self-employed people who are not members of a statutory interest group, including artists, are also subject to compulsory pension, health, and accident insurance. 

Those people who hold the nationality of a country outside the EU and the EEA are called third-country nationals. 

Attention: Fundamentally, Swiss nationals are also third-country nationals. However, as they are legally equivalent to EEA/EU citizens in many areas, the regulations on third-country nationals do not apply to them. 

In order for third-country nationals to be insured in Austria, they must first be legally resident in Austria. You can find out about the conditions under which this is possible in the visa & residence section. 

As soon as third-country nationals are legally resident in Austria, they are covered by social security to the same extent as Austrians.  

Attention: Please note that your insurance periods completed in third countries will only be recognised in Austria if there is a mutual agreement on the recognition of insurance periods in third countries. See the relevant chapter. 

Unlike Austrians, third-country nationals may only receive certain insurance benefits after a certain period of residence in Austria:

• If you want to draw a pension in Austria, you must have been insured for more than one year in Austria. If you fulfil this minimum period of residence, you can claim pension benefits under the same conditions as Austrian nationals. See the chapter on pensions.
• If you would like to receive minimum income benefits—state financial support in social emergencies—you must have been legally resident in Austria for at least five years. See the chapter on social emergencies.

One question that immediately arises when you work internationally relates to the countries in which you are liable for tax (i.e. have to pay tax). 

How do you know where you are liable for tax? 

Each country has its own regulations. Depending on the country, your tax liability typically depends on the following factors:

• Whether you are self-employed or employed in that country and what your level of income is;
• Whether your main place of residence is in that country;
• Your nationality: according to the laws of some countries, citizens must pay tax on their income in their country of origin, even though they neither work nor live there.

In Austria, a distinction is made between unlimited and limited tax liability:

• Unlimited tax liability means that Austria may tax a person's entire worldwide income. Most countries have regulations according to which a person's country of residence has the right to tax their entire worldwide income. The person is said to be "resident for tax purposes" in that country.
• Limited tax liability generally applies to people who are not resident in Austria. Their obligation to pay income tax is limited to specific income that is associated with Austria.

If you work and live in different countries, two or more countries may theoretically be entitled to tax your income. Many countries have concluded double taxation agreements so that gainfully employed individuals do not have to pay tax on their income twice. See the chapter on tax liability in multiple countries.

To do: If you are working across borders, you should find out about the tax regulations in all of the countries you work in and, if necessary, seek advice from a tax consultant. 

The following chapters will give you an overview on tax liability in

• Austria, and
• multiple countries.

As each country has its own rules on tax liability, you may be liable to pay tax in multiple countries if you work in more than one country. This means that both your country of residence and the countries in which you work may want to tax certain income simultaneously and therefore twice.

Example: Your habitual residence is in Germany. You work at a museum in the Netherlands. You also work as a writer in Germany and earn self-employed income from the sale of your books. As your country of residence, Germany has the right to tax your entire income—including that from the Netherlands. 
As you work full-time in the Netherlands, they may also have the right to tax the salary you receive there. Theoretically, your Dutch salary would be taxed in both countries. To prevent this, the Netherlands and Germany have concluded a double taxation agreement. 

In order to prevent double taxation of income, some countries have concluded double taxation agreements (DTAs). Such agreements govern which of the two countries may tax income earned in cross-border situations and which country may waive taxation in whole or in part. Double taxation agreements are designed to ensure that you only pay tax on your income once.

Example: You are an artist and the owner of one apartment in Berlin and one in Vienna. You work in both countries, although your children live in Berlin and go to school there. Under German law, you have unlimited tax liability in Germany because you have a place of residence and your children live there, i.e. this is your habitual residence. Under Austrian law, you are also subject to unlimited tax liability in Austria. To avoid having to pay tax on your income twice, Austria and Germany have concluded a double taxation agreement. It states: "The person is only deemed to be resident in the country in which they have a permanent home; if they have a permanent home in both countries, they are only deemed to be resident in the country with which they have the closest personal and economic ties (centre of vital interests)." Since you have a home and work in both countries, but your children live in Germany, you are only subject to unlimited tax liability in Germany. You are therefore only considered a tax resident in Germany. In Austria, you are only subject to "limited tax liability" on certain income that is earned there. Austrian law and the double taxation agreements contain detailed regulations on this, which are explained below.

To do: We recommend that you consult a tax advisor to clarify which country you are subject to unlimited tax liability in. 

Austria has concluded double taxation agreements with many countries. Click on the following link to see the list of Austrian double taxation agreements. 

In Austria, as in many other countries, a distinction is made between unlimited and limited tax liability:

• If you have unlimited tax liability in Austria, then Austria may tax your entire income earned worldwide.
• If you are subject to limited tax liability in Austria, then Austria may (only) tax your income earned in Austria in certain circumstances. 

In the following subchapters, you will find out at what point you become subject to unlimited or limited tax liability in Austria.

If you are self-employed in Austria, you are either subject to unlimited or limited tax liability. 

Info: In Austria, nationality does not play a role in tax liability.

You are subject to unlimited tax liability if you are resident or ordinarily resident in Austria. Your habitual residence is considered to be in Austria if you stay there for more than six months/183 days a year. 

If you have unlimited tax liability, Austria generally has the right to tax your entire worldwide income. Above a certain level of income, you must file an income tax return. On the basis of this declaration, the tax office determines how much profit you made from your self-employed activity in the respective tax year and taxes this profit. See the subchapter on income tax.

You are subject to limited tax liability if you are self-employed in Austria but do not have a residence or habitual abode there. If you are subject to limited tax liability, Austria may tax the self-employed income you receive in Austria under certain conditions. See the subchapter on foreigner’s withholding tax.

Attention: If you work across borders, you must check whether Austria and the country in which you are resident for tax purposes have concluded a double taxation agreement. This regulates which country has the right to tax certain income. See the subchapter on tax liability in multiple countries.

There are many different types of taxes in Austria. The following chapters present the types of taxes that artists and cultural workers who are employed and liable for tax in Austria most frequently come into contact with: 

• Taxation on income
  • People’s income from employment is subject to payroll tax.
  • People’s income from self-employment is subject to income tax.
  • Legal entities’ (i.e. companies such as associations) income from self-employment is subject to corporation tax.
• Taxation on goods and services
  • When purchasing goods and services, you usually pay value added tax (VAT).
  • Under certain conditions, self-employed individuals are obliged to charge VAT to their customers and transfer it to the tax office.
  • Employed individuals do not have to deal with VAT. 

Each country has its own laws governing contracts. If you work internationally as an artist or cultural worker, you will often conclude cross-border contracts. This means that you and your contractual partner are based in different countries and are therefore familiar with different legal regulations. In the following sections, you will find out what you should bear in mind when concluding a cross-border contract.

 

Info: The following sections are merely an overview and are not a substitute for legal advice in specific individual cases. 

The law of a specific country always applies to a contract. You should therefore always check which law applies to the specific contract before concluding it. In most cases, there is a free choice of law. This means that you and your contractual partner can choose which law should apply to your contract. The following choice is usually made:

• In most cases, the parties choose the law of the country in which the contract is concluded.

• The parties choose the law of the country that one of the contracting parties is based in.

Attention: As the regulations on contract law can vary greatly from country to country, you should familiarise yourself with the basic contract law regulations of the respective country and seek legal advice before making your choice of law.

In certain cases, the law of a particular country may be mandatory for a specific contract due to international agreements or European Union regulations, and a choice of law may therefore be rendered invalid. Contracts between traders and consumers or employees and employers are governed by European Union and European Economic Area regulations, which are intended to guarantee consumer protection: any choice of law must not result in consumers or employees being deprived of the fundamental legal protection of their place of residence. 

The place of jurisdiction is the court before which you and your contractual partner would be brought in the event of a legal dispute. This is based on the civil procedure regulations of the legal system applicable to your contract. 

Instead, however, you can stipulate which courts will hear any future legal disputes in your contract. This is called a jurisdiction agreement. In many cases, you can freely agree which court should have jurisdiction. 

Attention: Please note that there may be restrictions on your choice of jurisdiction. Depending on which national law is applicable to your contract, you must check the admissibility of jurisdiction agreements. For example, under the law of the member states of the European Union/European Economic Area, jurisdiction agreements between traders and consumers or employers and employees are only permitted to a limited extent. 

Civil law governs the legal relationships between private individuals. Contract law is part of civil law. By concluding contracts, you organise your daily life and your professional activity (e.g. by concluding sales contracts, service contracts, contracts for work, etc.).

In Austria, the principle of freedom of contract applies. This means that contracts can be freely negotiated between the contracting parties. However, there are individual mandatory legal regulations that prohibit certain content (e.g. due to illegality or immorality, labour law regulations, or mandatory provisions in copyright law).

Example: In most industries, collective agreements apply. These stipulate certain minimum standards for the employment of workers. If you work in this industry or have employees yourself, the employment contracts must fulfil these minimum standards (e.g. minimum wage, remuneration, and maximum working hours). See the chapter on labour law. 

Example: According to Austrian copyright law, contracts stipulating the transfer of your entire copyright on a work of art to another person are invalid. Only you can be the author. You can, however, authorise other parties to commercially exploit your work of art. See the chapter on copyright.

A contract can also be made up of elements from various legally regulated contracts. These are referred to as mixed contracts. In this case, the appropriate contract law applies to each part of the contract as normal. Accordingly, a mixed contract can be subject to several types of contract law. 

In the unlikely event that a contract is so far removed from the law that a completely new type of legal relationship arises, only the general provisions on contracts are applicable. This is an atypical contract. 

Most contracts are concluded without any formal requirements. This means that contracts can be concluded in writing, verbally, or implied (conclusive, tacit). However, we always recommend the written form for reasons of proof. Please make sure that you always have everything documented and that you are in possession of the contracts that you conclude.

Example: When you place a product on a conveyor belt in the supermarket, you are signalling that you want to buy the product; you do not have to verbally express your intention to buy it to the cashier. The employee charges you for the product, you pay, and you receive a payment receipt. Although you and the employee have not communicated verbally or in writing about the purchase, it is clear to everyone involved that a purchase has been made. In the case of purchases in shops, sales contracts are therefore concluded implicitly (conclusively, tacitly). As a rule, no written contract is drawn up here, only a payment receipt is issued. 

In certain cases, the contract must be concluded in a specific form (e.g. in writing in the presence of a notary) to protect the contracting parties.

Example: You set up a foundation to promote your art and transfer ownership of all your artwork to this foundation. The foundation declaration must be notarised.

Artists and cultural workers are therefore confronted with different types of contracts in their professional activities. 

Artists have various ways of earning money. They are often remunerated for their artistic accomplishments, for example concert performances, employment as actors, carrying out readings, or through the sale of their artwork. They can also commercially exploit the artistic works they have already created by authorising others to use these works under copyright law in return for payment (see the chapter on copyright). In addition, artists also commission external partners, such as artist agencies or artistic work intermediaries, to support them in their professional activities. 

Cultural workers are also confronted with different types of contracts, for example if they work in a publishing house and conclude licensing agreements with artists, organise exhibitions, or are employed by a cultural institution.

As you have already learnt in the subchapter on cross-border contracts and the subchapter on the applicable law, contract law varies from country to country. Regardless of the applicable law, there are certain types of contracts that you will find in most legal systems. Below you will find an overview of relevant contract types in the arts and culture sector and typical points that are regulated in these contracts.

Attention: If you are concluding  a cross-border contract, you should also refer to the information in the sub-chapter on cross-border contracts and the sub-chapter on the applicable law.

Most legal systems contain typical types of contracts that are important for working in the arts and cultural sector. The following sections will give you an overview of the contracts involved and the points that should be regulated in these contracts:

• Art purchase agreement (purchase contract for a work of art)

• Event contract

• Author contract

• Licence agreement

• Management contract

• Exhibition agreement

• Guest performance contract

• Contract for work and labour

• Employment contract

• Agency agreement

• Management contract

• Publishing agreement

• Merchandising agreement

• Sponsorship agreement

• Cooperation agreement

Attention: Please note that the specific structure of the contract types depends on the legal system applicable to the contract. When concluding a contract, you should therefore always check the statutory provisions in the respective law, for example on the minimum content of a contract, default, liability, and remuneration. See the chapter on Austrian contract law to find out more about Austrian regulations.

Every country has its own copyright laws. Therefore, if you work internationally as an artist, you are always confronted with foreign copyright regulations. 

The laws of another country may apply depending on where you exploit your intellectual property, where someone has infringed your copyrights, or whether you have contractually agreed to apply the law of a particular country. Many countries have concluded international agreements to define certain basic rules surrounding copyright law.

The European Union has also issued harmonised standards that apply to the exploitation/infringement of copyrights relating to EU/EEA countries. These also apply in Austria. 

The following sections provide you with an overview of these standards.

Many countries have concluded international agreements to ensure common basic rules in some areas of copyright law. These basic rules apply in all countries that have signed the agreements. The most important agreements include the Universal Copyright Convention, the (revised) Berne Convention, and the TRIPS Agreement.

In most countries, the territoriality principle applies. This means that the law of the country in which the use of the artwork or the infringement of the artist's copyright takes place is decisive for the existence, content, and expiry of the copyright. Whether your work of art is protected by copyright and the extent of this protection differs from country to country. 

Info: The territoriality principle applies in the following countries, for example: EU/EEA member states, Switzerland, USA, Mexico, Japan, China, Argentina, and many more. Click on this link for the complete list of all contracting states.

When artists conclude contracts on the use of their works under copyright law, they can stipulate that the law of the country where their artwork is used shall not apply, but instead agree with their contractual partners that the law of a specific country shall apply.

To do: Find out about the specific copyright laws of the respective country.

The protection of artists' intellectual property also depends on their nationality. If a certain country does not guarantee that works of art by Austrian artists are protected in that country, Austria typically does not grant copyright protection in return. 

 

As already mentioned, authors cannot completely transfer their copyrights to other people by contract ("inter vivos"). Under Austrian law, copyrights are too closely linked to the author’s person. 

Info: In other countries, especially in the USA, a complete copyright transfer is in fact possible.

Although you cannot transfer your copyright, you can authorise other people to use your artwork with the following contractual agreements:

• Through the granting of rights of use;

or

• Through the granting of licenses for rights of use.
• Besides the limits of immorality (see the chapter on fair remuneration), the rules of interpretation are also important for contracts in copyright law: interpretation is used to determine the content and meaning of the contract. Rules of interpretation are important because contracts often do not conclusively regulate every detail.

Austrian legislation and case law tend to favour a copyright-friendly interpretation: if no clear provision has been made in the contract, it is assumed, in case of doubt, that the exploitation rights remain with the authors. It is assumed that the person who acquires rights of use does not acquire more rights in case of doubt than appear necessary for the fulfilment of the planned use of the work (transfer of purpose theory).

There are certain special rules for interpretation in copyright contract law. Here are two examples:

• In case of doubt, a licence to use a work does not include the right to edit it;
• In case of doubt, the acquisition of a piece of work does not include any rights to use the work.

Example: You are a freelance artist and sell a painting. The buyer becomes the owner of the work. Unless you have agreed otherwise, the buyer does not also acquire exploitation rights upon their purchase of the work. You reserve the right to commercially exploit your copyright to the work of art—e.g. reproduction, public communication, editing.  

In Austrian copyright law, freedom of form and (with a few exceptions) freedom of contract apply. This means that contracts can be structured as desired and can be concluded verbally, in writing, or tacitly (implied—i.e. through conclusive actions).

Example: If you are booked as a photographer for a photo shoot so that your client can use the photos in a catalogue, the rights of use for the photos in this catalogue are deemed to have been implicitly granted—even if you have not expressly agreed this.

In the following sections you will find information on the granting of rights of use for works and the granting of licences to use works. 

Section 37b of the Copyright Act contains a provision on the appropriate and proportionate remuneration of authors. This provision also applies to performing artists (Section 68 (4) of the Copyright Act).

This is intended to guarantee that artists receive fair and appropriate remuneration when others use their artworks or performances. 

Flat-fee remuneration is permissible if it if it gives sufficient consideration to the scope of the rights usage. Furthermore, remuneration is only appropriate if it corresponds to customary and fair market conditions. 

Example: You are a freelance artist, and a TV channel wants to make a documentary about your career and your art. They want to show some photos of your artwork in the documentary. The TV station would like to pay you a flat fee for reproducing, broadcasting, and making your works available to the public. This is permissible. The level of remuneration must be based on what is usually granted to other artists for the same scope of use.

Example: You are an actor. Your employment contract states that you agree to transfer all your rights to your future performances to your employer. This arrangement is permissible, but only if your granting of rights is fairly remunerated, for example by means of overpayment in accordance with collective agreements.

If rights holders belong to a professional group which has a collective agreement, the remuneration stipulated therein is deemed appropriate. Collecting societies can also issue remuneration regulations.

Info: For an explanation of the term ‘collective agreement’, see the chapter on labour law. 

The Austrian Cultural Council has also drawn up Fair Pay Guidelines to establish fair pay for people working in the field of arts and culture. Visit the  Austrian Cultural Council’s website for detailed information. 

In copyright law—as in many other areas of law—there are "immorality" limits. This means that contracts in which there is a blatant disproportion between performance and remuneration are invalid ("adhesion contracts"). If you have concluded a contract in which someone can use your works or your artistic performance for a particularly low, unfair fee, the contract could be deemed void and thus cancelled. 

Not every artistic project is protected by copyright—protection is only granted to works of art that meet the definition of copyright law. However, as you will see in the following chapter, this definition is very broad.

Info: If the artistic production does not qualify for copyright protection, it may be protected by ancillary copyrights. See the chapter on ancillary copyrights.

According to Section 1 of the Copyright Act, works of the following artistic genres are protected:

• Literature
• Sound art (music and musical works)
• Works of fine art
• Film art 

The term literature encompasses linguistic works of all kinds, including computer programmes, stage works (body language), and works of science and education, including two or three-dimensional representations, provided they are not classified as fine art.

Besides paintings and drawings, fine arts include works of architecture (buildings), applied arts (handicrafts such as furniture, jewellery, graphics), and works of photography.

Works of music enjoy protection regardless of how they are created (e.g. instruments, computer-generated sounds, human voice). The individual creative elements (e.g. melody, harmony, rhythm) and their combination can be original and therefore also protected by copyright. It is not only audible music itself that is protected, but also written music such as the content of scores. 

Works of cinematographic art (motion picture works) are also protected by copyright. These include films set to music, silent films, videos, and computer games. Screenplays are works of literature. The film adaptation of a screenplay is the conversion of the screenplay into a film work, and is considered an adaptation of the film (see the chapter on editing rights).

Info:  Works are not only protected as a whole—parts of them are also protected. 

In order for works of art to enjoy copyright protection, they must fulfil certain requirements. A work of art must be

• one’s own (original),
• an intellectual creation,
• objectively interpreted as art, and
• perceptible to the senses.

Perceptible to the senses means that mere ideas that have not yet come to fruition and are therefore not recognisable to others do not enjoy copyright protection. As soon as your work appears in any form, your copyright takes effect upon this act of creation. You are free to decide how your work of art is presented.

Example: You have an idea for a poem—this idea is not yet protected. As soon as you read your poem aloud or write it down, it is perceptible to the senses and protected by copyright from this "moment of creation". 
In US copyright law, works of art must have a certain material form. It would not be enough for you to recite your poem there—you would have to record it on a medium such as a piece of paper or a tape.

Thoughts, ideas, methods, systems, technical solutions, mathematical formulae, theories, teachings, findings, an artistic style, or other formal principles and the like are not protected by copyright. 

The owner of the copyright is the creator of the work. Under Austrian copyright law, this can only be a natural person, i.e. a human being. Legal entities (companies such as limited liability companies, universities, associations, museums) cannot be authors, even if they have commissioned the work. However, legal entities can have exploitation rights to the copyrighted creations (see the chapter on exploitation rights). 

Info: The situation is different in US copyright law. There, legal entities can also be owners of copyrights. In the case of commissioned works, it is even assumed that copyrights are held by the client, unless they have made a contractual agreement to the contrary ("work made for hire").

Info: People who are authorised to exploit a work are also referred to as rights holders. Since authors and ancillary rights holders can authorise other people to exploit artistic productions, the latter become rights holders in the scope of the permitted use.

In the case of anonymous and pseudonymous works, the author either does not provide a name or makes up a name. In such cases, the editors or publishers are deemed to manage the copyright.

Besides being created alone, works can also be produced together:

• If a work cannot be "broken down" into individual parts but represents an inseparable unit, all the artists involved are co-authors. All co-authors must agree on how they wish to exploit the work of art. However, if one person infringes the copyright of their joint work, each individual co-author can defend themselves against the infringement. See the subchapter How can I take action against infringements of my copyrights?
• An associated work is only "associated" and therefore separable. Each part of the associated work remains a work in its own right and does not constitute co-authorship of the other parts. Only the exploitation of the entire work is carried out jointly by the participating artists.

Example: You and another musician write a melody for a song together. This artistic creation forms an inseparable unit; you are co-authors.

Example: You and another musician write a song together: one of you composes the melody, the other writes the lyrics. The music and lyrics are a combined work because you can separate the melody from the lyrics. You are not co-authors of the song, but each of you is the author of your own part: lyrics or music. However, if you want to exploit the song commercially, you must do so together.

Does a copyright notice lead to copyright protection for my artwork? 

No, whether or not you attach a copyright notice has no bearing on the question of whether your work of art is protected by copyright. Your work is always automatically protected from the moment it is created. 

To do: However, a copyright notice is still recommended. This is because it may be of significance under the laws of other countries. In times of digital networking and distribution on the internet, a copyright notice serves to emphasise on the internet that the work is protected. 

Attention: A correct copyright notice looks like this: © + name of the copyright holder(s) + year of first publication of the work.

In Austrian law, a copyright notice also triggers the presumption of authorship (Section 2 UrhG): if your name is on your work of art, it is assumed that you are the author of the work until proven otherwise.

Example: You have created an artistic photograph and have not attached a copyright notice. Another person places a copyright notice on your photograph, stating that they—and not you—are the author of the photograph. Until you can prove that you took this photo, the other person is considered to be the author.

In practice, it is often difficult to provide counterevidence, although artists have developed methods to make this easier. You can deposit your original work or a copy of it (e.g. printout, photo, CD) with a notary, who can then confirm that you created this work of art for the first time. Alternatively, you can send this "proof" to yourself by post and keep it unopened. The postmark serves as proof that you created the work first ("priority").

Copyright is so closely linked to you as the author that you cannot contractually transfer it in Austria. You cannot sell, transfer, or assign your copyright, neither in part nor in full. As the creator, you retain this right until your death, and it then passes to your heirs. 

However, copyright is not a perpetual right. Copyright is only valid for a certain period and expires after a term of protection. Once this period has expired, your work becomes "public domain" and is therefore available to the general public. After the term of protection has expired, anyone can edit and utilise your released work as they wish.

The term of protection has been largely harmonised in the EU: a term of 70 years applies to copyright. The following applies to the start of the term of protection:

• As a rule, the term of protection begins upon your death. Your work enters into the public domain on the first day of the year following the 70^th anniversary of your death. In the case of co-authorship, the death of the last co-author triggers the term. This rule also applies to associated musical works. 

or

• The term of protection begins on the date of creation of the work if the work is anonymous or pseudonymous. The reason for this is that the author is not known and the start of the term of protection cannot be determined otherwise. This term begins again at the time of publication of the work of art, provided that the work is still published within the term of protection. 

Example: You have created a work, and it is known that you are the author. If you die on 18^th March 2047, the term of protection of your work ends on 1^st January 2118 and the work becomes public domain.

Example: You created a work of art on 18^th November 2000, but it is not known that you are the author. This may be because you wish to remain anonymous or use a pseudonym. Your work’s term of protection started upon its creation on 18^th November 2000. The provisional term of protection ends on 1^st January 2071. 
You published your work—still anonymously or under a pseudonym—on 23^rd June 2020. The term of protection therefore started anew and does not end until 1^st January 2091. 

The term of protection for ancillary copyrights is 50 or 70 years. See the subchapter on ancillary copyrights.