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.
