Sunday, November 2, 2014

Components of a Commission Contract

Commissions are one of the main ways that composers earn money. They are solidified by means of a written contract. Many professional ensembles and organizations have their own standard commission contract that they use, whereas in other cases, the composer needs to draw up the contract. The terms in a contract will vary depending on the terms of the commission itself, but all should have at least the basic terms spelled out.

From my own experiences, I have found the following points to be important in contracts:

1. Basic components of a contract: 

Names of parties involved - i.e. John Moose, commissioner and Jean Bear, composer.

• The exact instrumentation of the piece - this includes listing all auxiliary woodwind and brass instruments that the composer would like to use – i.e. piccolo/flute, b-flat clarinet/b-flat bass clarinet, etc.

• The duration of the piece - this could be a range, such as 10-12 minutes.

• The commission fee that the commissioner will pay the composer and a payment schedule for when the money is due. For small commission fees, payment is typically due in one installment at the delivery of the finished work. If the commission fee is large enough, this amount can be due in stages, such as one half at the signing of the contract and the other half when the commissioner receives the piece. The composer should indicate where to send the money (provide a mailing address), as well as how long the commissioner has to send the money (such as 15 business days or a month).

• The due date for the full score and all parts.

• The delivery method for the full score and parts, either via email (PDF) or snail mail (including the address of where to send the scores). There should be a non-delivery provision that stipulates what happens if the composer is unable to get the commission done by the due date. Some commissioners might be fine with allowing the composer to reschedule the due date, while others may wish to call off the commission and have the composer return any commission fees already paid.

• The exclusive performance period for the commissioner to have sole performance rights. This can be anywhere from one to twelve months or more, depending on how much time the commissioner wishes to have exclusive rights. During this period, the composer can’t give the piece to anyone else to perform, nor get it published. The contract should also address what will happen if the commissioner doesn’t premiere the piece within the defined exclusive period (i.e. can the commissioner request an extension from the composer? Or does the composer then have the right to find another performer to premiere the work?).

• The composer owns the copyright.

• The commissioner has the right of first refusal to make a recording. This means that the commissioning party has first dibs at commercially recording the work should they wish to do so. A time limit is usually allotted for this right, typically one to two years.

• The wording for the dedication that goes on the first page of the musical score. This dedication can be simple, such as “Commissioned by the Phoenix Trio” or it can be more descriptive, such as “Commissioned by the Phoenix Trio in celebration of their 25th anniversary.” If a commissioner wants time to mull over the wording, you can indicate that the wording will be determined at a later date.

• A warranties and representations clause that states you are producing an original score and not using anyone else’s intellectual property.

The signature and date of all parties at the bottom of the contract.

2. Additional elements that you might find in a contract:

If the commissioner is not the performer, then there should be a clause indicating who is responsible for hiring and paying performers.

A force majeure clause is included by commissioners who would like to define what happens if there is a natural disaster or some global event that is beyond one’s control. In the case of such an event, the commissioning party can employ this clause to reschedule a premiere.

• If texts are involved, then there may be a clause that stipulates that the composer is responsible for properly securing all texts under copyright for worldwide performance and commercial distribution (in some cases, the commissioner may agree to this responsibility – either way, this should be indicated in writing). Commissioners may want the right to approve of all texts a composer selects to set, as well as proof that all rights have been properly secured.

A specific list of percussion instruments is typically included for works involving percussion ensembles, orchestras, and wind ensembles. It is better to include all percussion instruments you think you will need in the contract so that you won’t run into trouble later if you write for an instrument that the performers don’t possess.

• The U.S. state in which any legal issues would be solved should problems arise.

3. Things to be aware of when negotiating a contract:

• Ensure that the composer fully owns the piece’s copyright. This is not something that belongs to the commissioner. If you are reading over a contract that says otherwise, be very wary of signing this. If you sign the contract, then the commissioner will earn all future profits for the piece, from score sales to recording earnings, etc. instead of you. In a typical commission contract, the composer always owns the copyright (in contrast, a “work for hire” contract assigns copyright over to the commissioner).

• If you and the commissioner send several versions of the contract back and forth while discussing terms, read over every single version that you are sent to ensure that no terms have been changed without your knowledge (such as who owns the copyright).

• Check to make sure that there is an exclusive performance period, and that it is not longer than twelve months. This is to protect you as well as the commissioner. If the commissioner never gets around to premiering your piece and there’s no exclusivity period in the contract, then they can premiere it whenever they want, either now or ten years from now. Also, how long does the exclusive period really need to be? Is the commissioner looking to give a single premiere performance, or will he/she be touring the piece for a few months (or even a year)? If the commissioner is only seeking a single performance, consider asking for a shorter exclusive performance period, such as one to three months. Your new piece won’t build momentum if it is premiered and then sits around until the exclusive performance period ends. You can potentially negotiate for a lower commission fee in exchange for a shorter period – this trade-off might be worth it to get the piece into circulation faster.

• If you are young in your career and so are the performers who want to commission you, consider asking for more performances in exchange for a lower commission fee, especially if the performers can’t offer you much money. Performances will help get you and your music out there; this can be more valuable than cash in the early stages of your career. 

If any alterations are made to the contract, such as a change in delivery date, then both parties should initial a single copy of the contract, which is then sent to both parties. Keeping the contract up-to-date will help avoid any confusion.

• Even if the commissioners are your friends, be sure to always formalize your commission in a contract. This will help keep any misunderstandings or incorrect assumptions from impacting your friendship.

• If there is wording in the contract that you don’t understand, research it and/or ask the commissioners for clarification before signing.

In conclusion: 

Composers should remember that all terms are negotiable in a contract.  If you are uncomfortable with something that you read in a commissioner’s contract, then you should negotiate to get terms that work for you. I find that all contracts involve some give-and-take between the commissioner and the composer – each party will hopefully get what they want from the contract. Ultimately, you want to create a document that both you and the commissioner are comfortable with, and that will set a positive tone for you to compose an exciting new piece that they’ll want to perform.