This post is related to a couple of earlier ones about basic concepts arts organizations should understand about contracts as presented by Brian Taylor Goldstein and Robyn Guillams from GG Arts Law at a recent Arts Midwest conference. It is worth consulting the earlier entries regarding how to approach contracts and what general elements belong in contracts.
The main focus of the session GG Arts Law conducted was providing guidance about what issues should be discussed when entering a collaborative or commission arrangement with another entity.
The following are things to consider when discussing commission agreements.
- Delivery Date – what are the interval and final due dates on which different elements of the project are expected?
- Fee – what are payment terms, are they tied to progress or delivery dates?
- License and Performance Rights – just because you paid for it only means you can look at it. Any other license for use or performance need to be outlined in an agreement
- Ownership – just because you paid for it, doesn’t mean you own it. Copyright can be separate from physical ownership and should also be discussed.
- Approval Rights – just because you paid for it, doesn’t mean you can change it or refuse it.
- Termination – Under what conditions can this agreement be terminated? Who pays what (or returns payment)? What happens to the work that was commissioned?
In addition to discussing the concepts above, you should also think about the following when entering into a co-production agreement.
GG Arts Law made a point of warning against the use of the terms “partner” or “collaborator” without defining them because there is a legal assumption associated with those terms regarding how much each party shares in terms of liability, costs, etc.
- Artistic authority and control – who has it?
- Business authority and control – ditto
- Rights and Licenses – in addition to discussing what entity will hold the rights to the work created, also need to discuss who will be responsible for securing the rights to things like music from ASCAP & BMI. GG Arts Law pointed out that this arrangement is internal to the collaboration won’t protect you if you are sued by the rights holder and it wasn’t your responsibility. Everyone will be named in the lawsuit. This will help clarify who in your partnership will be responsible for paying any penalties and fees resulting from the suit.
- Ownership – as in commission except that it may be the partnership rather than an individual partner that owns the work, so you also need to discuss:
- Corporate structure – how is the partnership organized?
- Termination – as in commission section, except you also need to consider if the partnership or any entity goes out of business, who retains the rights to the work?
Regardless of whether you are doing a commission or collaboration, if you are dealing with a unit of government, including universities, there may be unavoidable rules and laws that dictate how they operate that won’t exist with others and can’t be negotiated around. GG Arts Law suggested being aware of the possibility of the following:
- Artistic authority and control – depending on the regulations authorizing the funding, there may be a requirement that authority and control reside with the governmental entity
- Business authority and control – The governmental entity will almost certainly be required to retain control off all money (ticket revenue, grants) in a partnership. Also be aware that the person you are dealing with may not be the person with final approval authority. The person with authority may be more familiar with landscaping and pool maintenance, (many cities have arts under parks and recreation), than arts and culture.
- Statutory Restrictions – the terms of your agreement will likely be subject to freedom of information laws and can’t be kept confidential if someone files a request.
- Ownership – depending on the regulations authorizing the funding, there may be a requirement that ownership of the work reside with the governmental entity
- Bureaucracy – In addition to the head of parks and recreation, the agreement, subsequent decisions and purchases in support of your project may need to be approved by a half dozen other people or committees, tripling your usual project timeline.
This is hardly an exhaustive list of the different issues that exist in each subject area, nor are these necessarily all the areas that need to be addressed. But this list is a good place to start conversations and considerations before formalizing the agreement in a contract.