Which Legal Form Is Right for a Creative Agency?
For many founders, the sole proprietorship and the LLC are the primary considerations at the beginning. The sole proprietorship is simple and cost-effective. It is particularly suitable if you are starting out alone, have little risk, and want to test your agency first. If your sole proprietorship achieved at least CHF 100,000 in sales revenue in the last financial year, you must generally register it in the commercial register at the place of business (Art. 931 Abs. 1 OR).
The LLC appears more professional, is often better suited for teams, and separates business assets more strictly from personal assets. In the case of an LLC, only the company assets are generally liable for company debts (Art. 772 Abs. 1 OR). In return, you need a share capital of at least CHF 20,000 (Art. 773 Abs. 1 OR).
The company name is also not completely free. It may contain details about the type of business or imaginative designations, but it must be true, must not deceive, and must not contradict any public interest (Art. 944 Abs. 1 OR). Especially with names like «Swiss», «AI», «Legal», «Studio» or «Group», a brief check is worthwhile to see whether the appearance is legally sound.
If you need support with the topic of founding, Jurata is happy to help you at any time.
Who Owns the Logos, Texts, and Designs of a Creative Agency?
The most important rule is: In Switzerland, the author is always the natural person who created the work (Art. 6 URG). An LLC or stock corporation cannot therefore be "creative" in the copyright sense itself. However, it can acquire rights, for example by contract (Art. 16 Abs. 1 URG).
The Federal Supreme Court clearly confirms this principle. Legal entities cannot be original authors, but they can acquire copyrights through legal transactions (BGer 4A_527/2021 E. 4.1). For agencies, this is central. When a designer, a copywriter, or a freelancer creates a work, the rights initially arise with this person. The agency therefore needs a traceable chain of rights.
A work is protected if it is an intellectual creation of literature or art with an individual character (Art. 2 Abs. 1 URG). This can include language works, graphic works, visual works, audiovisual works, works of applied art, and computer programs (Art. 2 Abs. 2 URG, Art. 2 Abs. 3 URG). Drafts, titles, and parts of works can also be protected if they themselves achieve the necessary individuality (Art. 2 Abs. 4 URG).
On the other hand, the mere idea is not protected. A campaign approach, a style, a mood board idea, or a general concept on its own is usually not yet a work protected by copyright. Only the concrete individual design is protected. This is practically important for agencies because clients often believe that by paying for a workshop they automatically receive all ideas exclusively. It is not that simple.
Why Client Contracts Are More Important Than Nice GTC
If you want to found a creative agency, you don't just need an offer and an invoice. You need clear client contracts. This is because the transfer of a partial copyright only includes other partial rights if this has been agreed (Art. 16 Abs. 2 URG). Furthermore, the handover of a file, a logo, or a design does not automatically mean that all rights of use are also transferred (Art. 16 Abs. 3 URG).
A good client contract should therefore specify what services are owed, when drafts are deemed to be accepted, what user rights the client receives, whether usage is exclusive or non-exclusive, for which channels the rights apply, whether edits are permitted, and whether the agency may display work as a reference.
The distinction between open working files and final results is particularly important. Many agencies deliver the final logo to the client, for example, but not automatically all editable source files, font files, raw data, or unselected designs. This should be explicitly regulated.
You should also record in writing with employees and freelancers which rights are transferred to the agency. According to case law, copyright also initially arises with the person who created the work in the case of employees. Although a transfer of rights can be assumed in the employment relationship due to the purpose of the contract, this must always be checked on the basis of the specific contract design and the circumstances (BGer 4A_527/2021 E. 4.2). A special rule applies to computer programs: If a computer program is created in the employment relationship in the exercise of official activities and in fulfillment of contractual duties, the employer alone is entitled to exercise the exclusive rights of use (Art. 17 URG).
Which Copyrights Must a Creative Agency Pay Special Attention To?
Copyright gives the author the exclusive right to determine whether, when, and how a work is used (Art. 10 Abs. 1 URG). This includes, in particular, reproduction, distribution, public performance, broadcasting, and making available (Art. 10 Abs. 2 URG).
For creative agencies, this means: Third-party images, fonts, music, templates, icons, stock material, mockups, and software components may only be used if the license for them is sufficient. "Found on the internet" is not a legal basis. Also "delivered by the client" is not always sufficient if it is unclear whether the client actually possesses the necessary rights.
Edits are also tricky. Anyone who uses an existing work in such a way that its individual character remains recognizable may create a second-hand work (Art. 3 Abs. 1 URG). Although such works can be protected themselves, the protection of the used work remains reserved (Art. 3 Abs. 3 URG, Art. 3 Abs. 4 URG). In practical terms: A heavily modified image, a derived logo, or an AI variation can still touch upon the rights of third parties.
In addition, there are moral rights. The author has the right to recognition of authorship (Art. 9 Abs. 1 URG). He or she can also determine whether and how the work may be altered or used for a second-hand work (Art. 11 Abs. 1 URG). Even if changes are permitted, the author can defend themselves against a personality-violating distortion (Art. 11 Abs. 2 URG).
What AI Risks Exist When Founding an Agency?
AI is both an opportunity and a risk for creative agencies. You can use it to develop ideas, test variations, structure texts, or prepare visuals. Legally, however, you should cleanly separate three points.
Firstly, not every AI output is protected by copyright. In Switzerland, according to the creator principle, it is crucial whether a human creative achievement is present (Art. 6 URG). If a tool essentially generates the result itself based on a trivial prompt, the human contribution may be too weak. If, on the other hand, a human uses the AI specifically as a tool, makes their own specifications, selects, combines, and post-processes, a protected work is more likely to be considered.
Secondly, AI output can violate third-party rights. If protected elements of a third-party work remain recognizable in the result, the use can be problematic. This gold standard applies regardless of whether the agency knew that the output contained protected material. The official instructions of the IGE also emphasize that AI-generated content can be tricky under copyright law if protected works or parts thereof are recognizable in the output.
Thirdly, the terms of use of the AI platforms are crucial. Some tools allow commercial use, others restrict it. Some providers reserve the right to use inputs or outputs for training, security, or analysis purposes. This is particularly relevant for an agency when clients supply confidential product ideas, unpublished campaigns, brand strategies, or personal data.
If you want to found a creative agency and use AI professionally, you should therefore determine internally which tools are allowed, which client data may not be entered, when the use of AI is disclosed, and how outputs are checked. A contract clause regulating whether and to what extent AI may be used is also useful.
What Should Go Into the Agency Contract?
An agency contract should be easy to read, but precisely regulate what counts legally. This includes the scope of services, client cooperation duties, timings, acceptance, remuneration, additional effort, rights of use, rights to drafts, use of third-party material, AI tools, reference use, confidentiality, liability, and termination.
Precision is particularly worthwhile with rights of use. A client who books a social media campaign does not automatically need the right to use all assets worldwide, unlimited in time, exclusively, and for every future type of use. Conversely, a client often needs broad and permanent use for a brand identity. The contract should therefore match the service.
If several creative people are involved, the agency should document who created what and which rights were transferred. This is not just a love of order. In a dispute, it can be crucial whether the agency can prove that it actually owns the relevant rights. In one case, the Federal Supreme Court denied active legitimacy, among other things because it was not sufficiently explained who had created which articles and whether the rights had been effectively transferred (BGer 4A_527/2021 E. 4.3).
Conclusion: Creativity Needs Clear Rights
If you want to found a creative agency, you should not view law as a brake. Good contracts make your work saleable, protect your margin, and prevent misunderstandings with clients, employees, and freelancers.
The most important points are simple: Choose a suitable legal form, secure your chains of rights, regulate client usage concretely, check third-party material carefully, and do not treat AI outputs as a law-free space. The more professionally your agency appears, the more important exactly this legal foundation becomes.
Frequently Asked Questions About Founding a Creative Agency
Do I have to register my creative agency in the commercial register immediately?
Not always. In the case of a sole proprietorship, the obligation to register generally only exists from CHF 100,000 in sales revenue in the last financial year (Art. 931 Abs. 1 OR). An LLC, on the other hand, comes into existence during the founding process with entry in the commercial register.
Does a logo automatically belong to the client after payment?
No, not automatically. Payment for a logo does not necessarily mean that all rights of use are transferred. The contract should explicitly regulate which rights the client receives and whether drafts, source files, or editing rights are included (Art. 16 Abs. 2 URG, Art. 16 Abs. 3 URG).
Am I allowed to use AI images for client campaigns?
Yes, but only with caution. You should check the terms of use of the tool, control the output for recognizable third-party works, and clarify contractually whether AI may be used. Furthermore, an AI image can only be protected by copyright itself if a sufficient human creative contribution is present.
Do I need contracts with freelancers?
Yes. Freelancers, as natural persons, initially remain the authors of their works (Art. 6 URG). The agency should therefore regulate in writing which rights of use it receives, whether it may pass these on to clients, and whether reference uses are permitted.
