Commissioning Agreements (or How To Get In Touch With Your Inner Lawyer)

name
Edward Ficklin

agreement n. 1 the act or fact of agreeing or of being in harmony or accord 2 an understanding or arrangement between two or more people, countries, etc. 3 a contract

Imagine that you’ve been given a commission that represents an incredible, career-changing opportunity. You feel this could be your best work yet. You get a contract to sign, and it stipulates that the piece will be a “work made for hire.” When you ask what this means, you’re told that the commissioner retains all rights to the work—they will own your piece and can do whatever they like with it. (Read the previous sentence again, then re-read it, and then ponder on what it really means—someone else will own your music!) Though work for hire is common in commercial settings, rarely should this arrangement applied to concert commissions.

Perhaps you’ve already written the piece, delivered the score, and the commissioner refuses to accept it. You look at the agreement you both signed and it doesn’t mention anything about refusal. Now what?

Or what if you’ve been given a commission and you’ve written half the piece. Suddenly the commissioner wants something completely different. You feel like they’re starting to write the piece for you. Since you’ve worked together so many times in the past, you mutually decided to forego any kind of written agreement. How do you convince them they’ve crossed the line?

Coming To An Agreement

Commissions are essential to the careers of professional composers. They represent key opportunities to explore new artistic directions, hone compositional skills, and reach out to new audiences. They’re also a huge risk—for both composer and commissioner.

That’s where the commissioning agreement comes in. The agreement is a shield both composer and commissioner can use to protect themselves should anything go wrong. Think of this agreement as insurance. You wouldn’t buy a house or a car without the right protection for your investment. Is your work as a composer any less important?

While a good agreement won’t eliminate every problem, it can help avoid the most common ones and make the whole process flow much more smoothly. But how to tell what’s a good agreement? Unfortunately, agreements are not of the “one size fits all” variety. Just as each commissioned piece will be unique, so will the agreement that helps bring it to life. Whatever the final form and content of the agreement, just make sure you have one, it’s in writing, and it’s signed.

Please note that my advice here applies mostly to commissions for concert works. The points I raise may not apply to other types of work arrangements you will come across throughout your career as a composer. Composing for film, television, video games, advertising, commercial theater, etc., are usually carried out under very different conditions.

To make sure you have a good agreement, I’m going to suggest two “simple” steps to follow:

  1. Communicate profusely before signing anything.
  2. Get everything in writing, keep it in writing.

Communicate Profusely

Sometimes the obvious must be stated. Communication is important and its value cannot be overestimated, during the commission and beyond. What to communicate about? Try these points for starters, but don’t limit yourselves to just these.

  1. Consider the nature of the commission. Discuss such things as the reason for commissioning the piece, expectations about the finished work, any historical or personal background behind the piece.

  2. Include the premiere date, performers, and venue.

  3. Decide on a final delivery date, as well as expectations for delivery of drafts or sections of the final work.

  4. Outline specifics regarding instrumentation and length. Who does the copying and to what standards? If the piece involves text, discuss who selects the text and who is responsible for getting necessary permissions to use the text.

  5. What role will the composer play in realizing the work? Often this is overlooked, but can be instrumental in relationship building and in making sure the work is performed as you intend. This is also a necessary point to discuss and include in the agreement for improvised and/or electronic works.

  6. Which rights remain with the composer? Which are granted to the commissioner or other parties? Typically agreements for concert works specify that the composer retains full rights to the work. Agreements will also specify limited or temporary rights granted to the commissioner, such as premiere rights, subsequent performance rights, right to make the first recording, broadcast rights, and who keeps the scores, parts, and other performance materials. Remember my earlier warning about “work made for hire”. Though first-time commissioners might not be aware of this, a concert composer is not expected to give up copyright of the work just because money is changing hands to get it written.

  7. Discuss money: Specify the total commissioning fee and the payment schedule. Usually the composer receives half the fee upon signing the agreement and the other half when the score is delivered. Keep the copying costs separate, even if the composer is also copying scores and parts. If the work does not involve scores or parts, discuss the nature of any necessary performance materials and who is responsible for producing and paying for them.

  8. Summarize publicity and promotion plans and include these in the agreement wherever possible.

  9. Include a request for an archival recording of the performance, if possible.

  10. State how and when the commissioner can request (not demand) revisions and whether the composer is bound to implement those revisions.

  11. Determine a method of dispute resolution before it is needed: Agree on a mediation service or an outside party to arbitrate should things go really wrong.

  12. Miscellanea: List what credits/attributions are required on the score, programs, press materials, and recordings; what additional publicity materials are needed by commissioner, presenters, or performers and when and how they should be sent.

Resources

On the Web:

Meet The Composer

Publishes Commissioning Music: A Basic Guide, which provides recommended commissioning fees and some advice on agreements. MTC can also provide, on request, sample commissioning agreements that cover a broad range of types of works.

Volunteer Lawyers for the Arts

Runs the Art Law Line, a help line for artists seeking legal advice. Simple questions and advice can be taken care of over the phone. More complex situations involving consultation with an attorney can be arranged. VLA can facilitate pro bono legal assistance for artists who meet certain income requirements.

Nolo Press

A legal publisher specializing in easy-to-use legal books and other resources for the non-lawyer. Their website also has extensive information and resources on legal matters for artists.

U.S. Copyright Office

Creative artists must educate themselves on the subtle, complicated and ever-shifting world of copyright law. Here is the source. The Copyright Basics and Frequently Asked Questions pages are a must-read for every composer. The time you invest here will pay for itself many times over. (You’ll also find out how to copyright your Elvis sighting—vital information.)

Don’t offer to waive your performing rights fees. Ensembles and many halls have to pay a licensing fee anyway, and you are entitled to a portion of that. If you waive the fee, then you will just be giving away your earned share.

If the stakes are really high or especially complex, talk to a lawyer. If you need help finding one, contact the Volunteer Lawyers for the Arts’ Arts Law Line at 212-319-ARTS Ext. 1 if you’re in the New York area or check their website (www.vlany.org) for a national directory of Volunteer Lawyers for the Arts Organizations. Lyn Liston, director of new music information services at the American Music Center, can also assist you in finding appropriate sources of legal advice in your area.

Get It In Writing, Keep It In Writing

Communicate in writing whenever possible and, yes, email does, for the most part, count as “in writing”. Just be sure to save any and all emails that deal with the commission. For really important concerns, however, such as changes to delivery dates or to the piece itself, there’s no substitute for an old-fashioned letter sent by certified mail.

Keeping communications in writing has the extra value of jogging either side’s memory when needed. Commissions can take anywhere from a few months to a few years to complete and sometimes the details can get a little foggy.

Don’t let the communications stop once you’ve both signed. If anything, there should be more communicating than before. Regular written updates, say once every month or so, are a good way to keep the relationship happy and productive and demonstrate that you’re handling this commission with a high standard of professionalism.

Write Your Own? Yes, You Can

Traditionally the commissioner presents the composer with an agreement and then the commissioner and composer negotiate before signing on the proverbial dotted line. This doesn’t always have to be the case. You—yes you, the composer—can write the commissioning agreement.

If you’re like me, you didn’t get much training in drafting legal agreements in music school. It will be helpful—necessary even—to consult some templates and other resources. These provide a good starting point. A note of caution: Make sure you read multiple examples—don’t just cut and past the first one you find. Various user-friendly legal guides give templates and instructions on drafting agreements, and service organizations like Meet The Composer and the American Music Center will have templates specific to commissioning new music.

My “talking points” above can also serve as a guide to drafting your own document. Covering each point in the order presented would produce a good, if somewhat basic, commissioning agreement.

If you take anything away from this discussion, I hope it’s a clear understanding of the need for communication when dealing with agreements. The more you and the commissioner talk about before signing and during the entire commissioning process the less chance there is that something will go irreconcilably wrong. Don’t be afraid to ask and don’t ever delay in responding.

I’ve only just touched on some deep and complicated issues and further research on your part is highly recommended. While it may be frustrating in the extreme to exchange the courting of your inner-muse for your inner-attorney, it is time well spent. Remember, commissioning agreements are insurance and a few hours of your time and a small “premium” will bring you much needed peace of mind and protect your creative endeavors.

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Composer and librettist Edward Ficklin lives and works in New York. In addition to directing the Voyeur Theater Ensemble (voyeurensemble.com), he is on the staff of Meet The Composer, Inc. where he manages two key MTC programs: Commissioning Music/USA and Global Connections. More information about Edward and his work is available at www.edwardficklin.com.