What to consider, and words to look out for

It’s a good idea to make sure these points are included in a commission agreement:

• ownership of the work
• intellectual property rights
  
• medium – for example, painting, sculpture, digital works
• what the work will express or convey
• any non-negotiables, like required size or shape
• when the work will be completed
• payment amount and payment timescales
• if expenses you incur will be covered
• how the work will be made available to the client
  

There should also be a section covering contingency planning. What will happen if there are delays or things do not go as expected? Can the commissioner withhold payment for any reason?

The copyright clause

Most contracts for artists and creators will have a clause that covers copyright. This sets out how much control you have over your work if any. Certain words could give the commissioner more control than you.

The entire agreement clause

Wording stating that the contract represents the entire agreement between you and the other party, the commissioner, means anything decided beforehand is irrelevant unless it’s in the contract. For example, if you asked for certain terms by email, for them to apply they must be written in the contract itself.

Check that the contract is consistent with previous conversations you had. If it’s not, ask to have inconsistencies put right.

Even if the contract doesn’t include the words ‘entire agreement’, there may be other language that indicates its terms are the only legally binding agreement.

Words to look out for

If these words are in the contract, make sure you understand their effect and are happy to agree to them. You may not be able to change your mind later.

• Works or Artistic Works – this should accurately describe the work you’re contracted to create
• Assignment – in relation to copyright, this means giving away the rights you have as the creator of the work, meaning you have no control over how your work is used in future
• Waiver of moral rights – your moral rights include the right to be identified as the artist or creator, and remain even if you give up the copyright, but you can be asked to waive them which means the other side does not need to respect them
• Intellectual Property Rights – this could include a broad range of rights such as copyright, designs, trade-marks, patents
• Licence – this allows someone else to use your work in the ways you agree, which are your ‘terms’, for example, how the work can be used and for how long
• Exclusivity – this could mean you would not be able to allow any other person (including yourself) to use of the work in the way described in the ‘terms’ of the agreement
• Warranty – this is a promise/assurance, for example you might be guaranteeing that your work will not infringe anyone else’s intellectual property rights
• Indemnity – an agreement to cover losses in certain situations, for example paying compensation for copyright infringement
• In perpetuity – forever
• Irrevocable – the agreement cannot be withdrawn from
• Worldwide – the agreement applies globally

What else to consider

It’s worth having a legal advisor review any document formalising an agreement to produce work for someone else or an organisation before you sign it. Ask them:

• What rights will I continue to have?
• How long does the agreement last?
• Is there any way of ending the agreement early?
• Can I still use my work, like include it in a portfolio?
• Do you need to take out insurance policies, like professional indemnity or public liability?

Read this guide’s commission agreement checklist chapter