Having given a short introduction to the world of commissioning agreements, I’m back to have another go at the question from a completely different angle. This time we’re going to discuss some of the same issues as they apply to collaborative works. Just using the word “collaborative” already tells you that we’ve entered murky territory. There’s rarely a neat roadmap to tell you where you’re going (or when you’ve arrived) in a collaboration. It might even feel a little like stumbling in the dark.
So let’s look at one way of shedding some light on the subject—a collaboration agreement. Just like its cousin, the commissioning agreement, the collaboration agreement is a legal document—a contract, if you will—that spells outs expectations and obligations among the creators of a work and can also incorporate expectations and obligations between creators and commissioners.
To help us get started and to make the discussion more meaningful, I’m going to set some boundaries by defining—somewhat narrowly—a few important ideas. Collaboration, for our purposes here, will be defined as the joint creation of a new artistic work by two or more artists. These artists can work in the same or different (even multiple) disciplines.
I say “joint” to emphasize the flat structure to the working relationship—flat, not hierarchical. One person is not directing the other(s). If that were so, then it would be work-for-hire, not collaboration. Here we’re talking about equal partners. The other important aspect to joint creation is ownership. All collaborators jointly own the work created out of the collaboration. This joint ownership has important implications when it comes to the intellectual property rights of the work and how those rights can be exploited.
It is because of the not-so-small details just mentioned that a written agreement governing the collaboration is a good idea. It may feel a little awkward, even adversarial, but it need not be that way. Written agreements don’t have to be weighty and legalistic, don’t have to be fretted over by large teams of well-paid attorneys or anything like that. As I mentioned in the previous article about commissioning agreements, ordinary language in a friendly yet professional tone will be more than adequate.
There is no set standard for such an agreement, and many successful collaborators have never even thought of such a thing, let alone used one. One size most certainly does not fit all. The format of a collaboration agreement can vary widely. In the commercial theater realm, for example, collaboration agreements are not uncommon and often very long, very legal, and very complicated. In our more genteel (i.e. less profitable) world, such iron-clad tomes created by lawyers, lawyers, and more lawyers, are not really necessary. A straightforward letter of “agreement” or “understanding” signed by each collaborator is more than sufficient. It should describe, in the aforementioned friendly yet professional language, how the collaboration will proceed and what the expected outcomes are.
To get you started consider this series of questions and use the answers as the basis for your agreement.
What are each collaborator’s feelings about having a written agreement?
Does each collaborator feel it’s necessary or would it interfere with the relationship and/or working process by setting the wrong tone, or, worst of all, breed resentment?
Will the collaboration agreement be separate from the commissioning agreement?
Collaboration issues can be incorporated into commissioning agreements. They can also be kept entirely separate. One advantage to a separate collaboration agreement is that the development and exploitation of the work after the commission is complete can be more easily managed. It will also keep the commissioning agreement (and possibly the relationship with the commissioner) much simpler.
What is the time frame for creation of the work?
When does the work on the piece start and how? Will it start with meetings, an exchange of materials for review, working sessions? Are there deadlines to meet, such as readings, rehearsals, or performance dates? What are the consequences of not meeting those deadlines?
What is the budget for this collaboration?
Awkward though they may be, discussions about money right up front can smooth the way later on. Is there money involved and who gets what? Also consider the costs of materials, equipment, space, or other needs necessary to the creation of the work. Who gets to hold the purse strings? Even if the collaboration is more open-ended or speculative, some discussion of the costs involved and financial control would be merited.
What will be the development process?
If the collaborators are willing to set milestones, a written agreement is the place to do it. If that feels too restrictive, then maybe a schedule of meetings—without dictating any outcomes—might better suit the working relationship. Discuss what each collaborator’s contribution will be. This is not always as obvious as it seems at first glance. When working within a well-established form like ballet or opera, each collaborator’s part is clear cut. But what if you’re venturing into new territory that doesn’t fit easily into traditional forms or disciplines? It might help to think in terms of “deadlines” and “deliverables”.
What happens after the work is done?
If the work was created through a commission or for a specific performance, what’s the fate of the work and the collaboration after that? Will there be further development of the work? How about publicity, recordings, fundraising, etc.?
Who owns what after the work is complete?
Intellectual property rights—i.e. ownership and licensing—are going to be the most important part of any agreement. Therefore, always discuss these issues before starting anything (even if you decide to forgo a written agreement). The licensing of a work becomes more complex when multiple creators are involved because the “ownership” of the work is not clear cut. Will collaborators own their parts individually and a share of the ownership of the work as a whole? Will individual creators have the right to exploit or further develop their individual parts of the whole work—with or without permission of the other collaborators? This is definitely murky territory. Collaborative works don’t always lend themselves to easy division into component parts. And most importantly, always, always, discuss how any future income will be split. The intellectual property issues are likely to be the one area where collaborators will want to seek legal advice.
How will each artist be billed?
It’s always worth your while to discuss how collaborators will be billed in publicity materials and playbills. This need not—probably should not—be too detailed. Simply spelling out how each collaborator’s role (composer, choreographer, librettist, etc.) will be listed and agreeing that all collaborators will receive equal billing should be sufficient.
How and when can we change the agreement?
Change is inevitable. The development process might bring to light whole new avenues of exploration, new funding sources, or even new collaborators. Make some provision for flexibility in the future.
I’d like to close with three thoughts on collaboration and its future in our increasingly digital age.
1. Communicate: Communication is vastly easier with the advent of email, and those emails are a great way to keep track of changes as the collaboration progresses. Email provides a great source of documentation. If you don’t already, you may want to explore various ways of sorting and archiving the incoming and outgoing emails related to the collaboration in question.
2. Manipulate: The distribution and easy manipulation of digital content can facilitate collaboration across distances and time. This trend will only increase in importance in the future. However, the same concerns about collaboration, especially intellectual property rights, still apply.
3. Alternate: Our digital age has seen the creation of several alternative schemes of licensing and new ones are sure to come along in the future. Two major trends are at the root of these developments. First, the ease of digital distribution and manipulation of content have increased dramatically. Second is a strong culture of intellectual collaboration as seen in the software industry in response to the monopolistic practices of certain behemoth corporations (which shall remain nameless). The results of that culture are now finding their way into and influencing the world of art and giving birth to entirely new ways of creating and distributing multi-disciplinary works. For some insight into this brave new world, check out the Creative Commons website at www.creativecommons.org. While these alternative schemes are certainly not for everyone, it is good to be informed about this growing trend.
Is a collaboration agreement absolutely necessary? No, not really, not in the way a commissioning agreement is. Be aware of the possibility, however, think through the pros and cons, and then, most importantly, discuss the issues and decide for yourselves. It might be a little awkward at first, but the collaborative partnership will likely be that much stronger for the effort.
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.