When an agency keeps the design files: what it costs to be wrong
An agency's refusal to hand over design files does not settle who owns the work. Ownership follows the assignment terms set out in the contract, not possession of a folder. Before any dispute escalates, capture what exists, check the assignment clause, and identify which deadline is already running. Getting this order wrong costs weeks of leverage and, in a live matter, the file itself.
Legal basis
Where the withheld files include source code, the underlying computer program is protected under Directive 2009/24/EC, independent of who currently holds the file. Protection attaches to the author, or to whoever the author's rights were validly assigned to.
Where the withheld files form a structured compilation, such as an organised set of components, layouts, or specification records, the compilation itself may fall under Directive 96/9/EC. Both regimes protect the work regardless of possession. An agency holding a drive is not, by that fact alone, an owner.
What actually changes
Possession creates friction, not title. A client who commissioned the work under a written assignment already owns the result; the agency's refusal is a breach of a delivery obligation, not a title dispute. A client without a written assignment faces a harder question: default authorship rules may leave rights with the agency's staff, not with the agency and not with the client.
The cost of getting the order wrong is time. Sending a formal notice before checking the contract wastes the notice period on the wrong argument. Escalating to counsel before collecting the delivery history means counsel argues from silence.
What to do, in order
Follow this order. Skipping a step usually means repeating it later, on someone else's clock.
| Step | Action | Who does it |
|---|---|---|
| 1 | Pull the contract and locate the assignment or licence clause | Client, or client's counsel |
| 2 | List what was actually delivered against what the contract required | Client's project lead |
| 3 | Identify whether a notice period or cure period is already running | Client's counsel |
| 4 | Send a written demand referencing the specific delivery clause | Client's counsel |
| 5 | Preserve evidence of the refusal and of any partial delivery | Client's project lead |
| 6 | Escalate to the forum named in the contract once the demand lapses | Client's counsel |
Who decides
The forum is whatever the contract names: arbitration, a named court, or a specified national jurisdiction. Absent a valid clause, the default is the court where the agency is established or where the contract was performed. The decision turns on the assignment wording and on what was actually delivered, not on who currently holds the files.
If your situation differs
If the contract contains no assignment clause at all, the starting position shifts against the client; the first task becomes establishing who authored each component, not demanding delivery.
If the disputed engagement also carries its own security obligations, the file-retention question runs alongside a separate track: A security addendum arrives with the order form technology.
If part of the withheld deliverable is a tokenised asset whose legal nature is contested, that question is handled separately: When a token is classified differently than expected in.
What this page does not cover
This page does not resolve valuation, does not draft an assignment clause for a new contract, and does not trace assets once a judgment already exists.
If ownership is confirmed but recovery depends on locating assets held abroad, a registry-based product covers that separately: Asset in Luxembourg: what can be established.
If the agency is not merely withholding files but is otherwise evasive or insolvent, the enforcement question is covered here: Debtor report before starting enforcement in detail.
Related situations
A related dispute over authorship arises when a technical co-founder departs before an assignment is signed: When a founder leaves with the prototype in practice.
Verified
Primary sources: Directive 2009/24/EC, on the legal protection of computer programs, and Directive 96/9/EC, on the legal protection of databases, both as published on the official EU legislation portal. Checked at the time of publication.
FAQ
What is the first step when an agency keeps the design files?
Locate the assignment or licence clause in the contract before sending any demand. The clause determines whether the refusal is a breach or a genuine dispute over title.
Which deadline is already running?
Check the contract for a cure period or notice period tied to the delivery obligation. Absent such a clause, the applicable limitation period for a breach of contract claim starts running from the refusal itself.
Who decides, and on what evidence?
The forum named in the contract decides, based on the assignment wording and on records of what was actually delivered. Possession of the file carries no evidentiary weight on its own.
A dispute over held files rarely stays small once a deadline lapses unnoticed. Set out the facts, the clause, and the running clock before the first letter goes out.