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Composer Contracts

August 17, 2012

There’s a lot to cover, which I thought would take more than one post, but I realize one post is better. So let me dive right into it. Keep in mind that what you’ll read are generalities (with the occasional specific suggestion) and that your situations may differ from mine or from your own from one to the next. Also, to keep things all proper and legal:

I am not an attorney. What is presented below are ideas culled from agreements I have negotiated and signed on my own behalf. Do not sign any agreement, let alone write one, without understanding all of it; if you do not understand it (and even if you do the first time or two) you are best off having an attorney read it and explain it to you. (It is well worth the money, I’ve found.)

Commissioning Agreements can be a single page or several, but they all have several things in common:

  • The parties involved: As I mentioned in my previous post, that means the composer who write write the work, and the commissioning party who is paying* for it. The definition of the people involved will usually include the addresses of record for each. Once the parties are defined the terms “Composer” and “Commissioner” or “Commissioning Party” are used throughout the rest of the agreement.
  • What is required of the Commissioner: This will often start with language like “Commissioner hereby commissions Composer to compose a work for [whatever the instrumentation]. In making this commission, Commissioner agrees:”, and then goes into a list of what is expected of the commissioning party. This will include: 1) Paying the composer an already agreed upon commissioning fee for the delivery of a fair copy of the score (and one set of parts, if any); 2) optionally, the definition of and promise to secure any additional funds for the composer’s participation in rehearsals, the performance, coaching, etc,; 3) paying half of the fee upon the signing of the agreement, considered non-refundable, with the promise to pay the remaining half upon delivery of the completed score; 4) Unless a composer is really “hungry” and doesn’t mind, it’s a good idea to include here like this one: “All aspects of composition of the work are to be determined solely by Composer, including but not limited to the title of the work, the number of movements, the musical language or style, the duration of the work, and instrumentation within the parameters set forth in this agreement.” Notice that it allows some aspects to be pre-determined and mutually agreed upon (like a durational range, say, 5’00” to 10’00” — see below).
  • What is required of the Composer: 1) Some details of the piece, including the durational range, the fact that it is to be “original in origin or may include arrangements of other music determined to be in the Public Domain” (which means anything written before 1923 in most instances), and the instrumentation, which should be mutually agreed upon and “not finalized until the completion of the score.”; 2) to provide a “fair copy” (readable and usable, in other words, whether done by hand, computer, and so on) of the score and parts (if any), the date the score is due and — if there are parts — the date the parts are due**, 3) giving the commissioning party the exclusive right to premiere the work for an agreed upon amount of time from the delivery of the score — I usually say a year, but you can offer an extension if it is mutually agreed upon later on; 4) giving credit to the commissioning party in the program notes of the premiere and — this is negotiable but I usually offer it anyway — in any published edition of the score, with the wording to be (you guessed it) mutually agreed upon; 5) lastly, the composer should give the commissioning party permission to record or video the performance(s) of the work provided the recordings are not used for commercial purposes (offered for sale in any  way), and that the commissioning party is to give the composer a copy of any such recording. The composer and commissioner may also agree that it’s okay to put a video up on YouTube, Facebook, etc., but again as long as it’s not for commercial purposes; the use of any recordings for commercial purposes must be negotiated separately from the agreement.
  • What both parties agree to do or allow: 1) Composer retains all rights, including those of copyright and commercial recording. This should be non-negotiable; if a commissioning party wants to take on the copyright, run away, fast. Also, the composer (and if circumstances permit, the composer’s publisher) are to receive all performance royalties through the appropriate Performing Rights Organization (ASCAP, BMI, and SESAC in the U.S.); 2) the composer will allow the commissioning party to keep one set of score and parts, and should give the commissioner the non-exclusive right to perform the work after the premiere without additional fees except performance royalties (again, paid to the composer’s PRO); and 3) if the commissioner  cancels the commission before the completion of the work but after the agreement has been signed, the first half of the fee paid automatically becomes a “signing fee” (in prose authors’ parlance, a “kill fee”) and payment in full (the “non-refundable” aspect I mentioned earlier).
  • “Standard boilerplate”: Although a really good contract spells out everything in clear, everyday language, some legal-type writing is inevitable. Fortunately it usually appears at the end. 1) The agreement is binding on the commissioner (and the commissioner’s “heirs, executors, administrators, successors or assign,” in case, the person commissioning you dies, G*d forbid, but the ensemble he/she conducts still wants to do the work); at the same time, the composer’s “heirs and assigns, including conservator and guardian, and the executor or administrator of [his/her] estate” retains all of the rights “and remedies” under the agreement***; 2) Boilerplate or not, the last item before the signatures is important. It says that the written agreement is the whole agreement, not to be modified and as such held binding by either party unless those changes are in writing and signed by the other party; 3) finally, a statement saying the agreement is “hereby executed” and witnessed by both parties on “this” date, with each one’s signatures.

This is a lot of information, and frankly what I’ve written is longer than a lot of the contracts I’ve signed (but still have all of the important stuff in them). One thing mentioned above is the idea of “performance royalties.” This brings up a whole other topic, what I’ll call “Performance Income versus Use Income” in my next post. I might also post a sample contract, depending on the response to this post.

* Depending on the circumstances a “commission” might not require an actual payment of money; it could be the promise of a specific performance or set of performances, or some other means of compensation that the composer has determined worthy of him or her writing the work.

** The bigger the ensemble and/or longer or more complicated the piece, the more time you need to generate a good set of parts with proper page turns, etc. I usually give myself about a month for a one- or two-movement band or orchestra work, but sometimes I’ve had to have everything, score and parts, ready by one date. Your mileage, as folks say, will vary.

*** “Boilerplate”? “Assigns”? “Remedies”? See why you need a lawyer? (Look those words up if you’re curious.)

© 2012 Steven L. Rosenhaus

 

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