What is an artist commission agreement?
An Artist Commission Contract is a legally binding agreement that serves as a formalized bridge between an artist and a client who is looking for a custom product or piece of work. This contract is critical as it lays out a common understanding of the terms and conditions in plain sight, so that all parties can avoid or not be taken aback by unwelcome surprises or disputes down the line. It is also essential to be specific in an Artist Commission Contract as it lets the parties clarify the extent of the services to be rendered which will help them avoid steps in the process that could be bothersome or overly expensive to them.
As with any other contractual relationship , the parties must have the legal capacity to enter into a contract, and it is important that both parties enter into the contract voluntarily and not be coerced. Otherwise, grounds for enforcement actions on the contract may be present even before a breach occurs, which can undermine the contractual relationship before it even begins.
Essential components of an artist commission agreement
When entering into a commission contract, there are some key aspects both the artist and the commissioning party should agree on. These include the payment of services, an agreed deadline for delivering the work, and a scope of work for the expected project. Most commissions involve original works of art and the question of usage comes into play. Finally, consider if either party can cancel the contract before the commissioned works are complete.
Payment terms
As a rule of thumb, the percentage of the total fee is usually more than halfway at the time the contract is signed. Remember, the shorter the period between signing and delivery, the more the risk of non-payment after the work is delivered. The artist’s need for funds will dictate terms. Some artists are willing to accept 100% payment up front. A payment schedule can divide the work into projects or stages that are paid for as the work progresses. For example, a preliminary drawing is due in two weeks, to be paid upon approval. Then a maquette (small preliminary model) is due in four weeks. If the client wants changes, they will be done at a nominal fee of 10%. The farthest out an artist will stretch their payment terms is six months – any further than that creates too much financial risk.
Delivery date
If a project involves traditional mediums of wet paint or clay, a client needs to be flexible if the work should take additional weeks to dry or cure. The artist should stipulate that wet works require extra drying time, and if the work leaves the studio before it’s dry, the contractor assumes all risk of damage, because the artist no longer has control over the work. An artist also needs to be mindful of how to deal with a client who insists on pre-empting a contract so he can have the work for an earlier date. If an artist breaks a contract, they not only put themselves at risk for a breach of contract lawsuit, but also the cost of rebating the work or staying up all night or weekend to finish it – which may not even be possible.
Scope of work
The scope of work needs to be relatively clear, although vague enough to be open to the artist’s preferred method of working – to allow for creative freedom. It should contain general categories of subject matter that the commissioning party is skilled at or enjoys working with or, conversely, the work should be left to the discretion of the artist. For example, the contract can state that "the artwork shall include the horizon line. All other design elements will be left to the discretion of the artist." This will let the collector feel he’s been heard and artist can paint with a more spontaneous approach.
Rights of use
If an artist expects to reproduce the work, the contract should outline the rights of reproduction. If the artist hasn’t explicitly reserved rights, the client has all rights to the work. In this case, the artist cannot ever make a reproduction without the client’s written permission and could even be liable for statutory damages if successfully sued by the client if the artist makes or sells a reproduction without permission. On the other hand, if rights are reserved, the artist has the full right to make reproductions. The artist must also be careful and spell out if and when the client may use the work for marketing and promotional purposes that go beyond the scope of a private collection. Otherwise, any unauthorized use by the client could be very costly for the artist.
Cancellation policies
A contract can have termination provisions that contemplate the situations under which either party can end the agreement. Cancellation provisions can also determine what the artist should do with the work upon early cancellation.
Why an artist needs a commission agreement
Artists benefit greatly by having a contract for commissioned work. Such a contract will protect their work, secure their payment, and provide a clear reference point in case of a dispute.
Protect the Work
For artists, a commission contract is first and foremost about protecting your work. Artists often pour hours and hours of creativity and craftsmanship into a commissioned piece. As an artist, you want to be proud of each piece that you create. A contract will help protect that by setting out what will happen to the piece and who will own the rights when the project is finished.
Secure the Payment
Then there is the question of payment. A contract will secure your payment. It will set out how much and when payment is due, and will include any nonrefundable portion of the payment. If the project extends over a period of time, the contract can outline the payment plan for the entire project.
Provide Framework in Case of Dispute
Finally, having a contract serves as a great protection in case of a dispute. Of course the hope is that no dispute will arise. However, if it does, the contract will serve as a reference point to help sort out the details of the agreement. This way you are not both relying on two different memories of a verbal agreement that was made six months before.
How to draft an appropriate artist commission agreement
Commission contracts can be relatively straightforward or highly complex but all should include a number of key elements to give yourself and your artist a clear and unambiguous understanding of the basis of your relationship. At its most simple, it should be clear what work you want done to what standards and for how much. If work is to be paid for in stages, then your contract should make it clear when each stage has been passed. When work will be completed by was discussed earlier, but understand it is not uncommon for timelines set out in any contract to go out the window due to issues with permits and similar bureaucratic hurdles.
The last thing you want is for the contract that you forged together to be full of legalese and industry jargon. The sort of language you spit out when writing contracts has very different meanings to the everyday person than it does to a property lawyer. For instance, there is a huge difference in what "absolute ownership" means to you and a real estate lawyer.
You should build a contract around the specifics of the project. For example, say you hire a commercial artist to create a billboard, you will want to ensure your contract covers the production process and installation. It may also be worth addressing whether the artist will have any continuing obligations to you against that particular work. If you are commissioning multiple pieces, you have an even greater need to agree on where your side of the bargain starts and ends. If you want them to guarantee the contract value of commissions for a year then you should make that clear in the contract.
As with all contracts of more than modest value, you should put the contract in front of a suitably experienced legal professional before you hit send. Professional services are worth paying for when they are the difference between an enforceable contract and one that is full of holes.
Common pitfalls in artist commission agreements
Even with the best of intentions, artists and clients can make mistakes when drafting artist commission contracts. Below are some frequent errors and how they can be addressed: Vague Scope of Work. Clients seek out artist commissions for myriad reasons, and while those reasons will become clear as the project progresses, the initial contract should set out a general description of the scope of work. It is not necessary (or even desirable) to get into work details, as they are most often defined as the commission progresses, but a general description of the work helps to avoid differences of opinion later.
"Pay When" Issues. Commissions can be subject to "pay when" issues based on approvals or milestones, while sales of existing pieces of art are almost always "pay when . " Commissions can also be subject to "pay when" issues on various elements of the work (e.g., a border approval) that may push payments to the end of the project, which could be an issue if the value of the work increases during the project (i.e., after the artist creates an Instagram following, or gallery interest takes over control of the pricing).
Contingencies. Contracts are rarely written entirely from scratch, but they can usually be improved upon by eliminating "boilerplate" language (language that appears in many contracts but actually comes from prior unrelated contracts). If the contract initially proposed to you seems outdated or unclear in its terms and language, work to correct that. Outdated or unclear contract language is a significant risk for both the artist and the client. If you don’t understand it, neither will a judge or jury.
Artist commission agreement templates
Template agreements may be useful for the purposes of illustrating the types of provisions that may be included in artist commission contracts. However, as provided above, each specific project will need to be assessed to determine which of the suggested provisions are appropriate for that specific project.
The following review those artist commission contracts that are available on the internet:
California Lawyers for the Arts: Professional Services Agreement
California Lawyers for the Arts has provided a sample template artist commission contract for visual artists and studios for professional commission services. The professional services agreement typically is used between a collector and an artist when the artist is commissioned to create a work of art, whether for a residential or commercial space.
Canadian Copyright Commission: Canadian Copyright Contract
The Canadian Copyright Commission provides a sample artist commission contract that may be used by visual artists to navigate their copyright ownership with an exciting end user, whether in a residential or commercial space.
ASCAP: Music Commission Contract
ASCAP has provided a sample template artist commission contract for music based arrangements. The ASCAP’s sample artist commission contract outlines many important elements of traditional artist commission contracts including.
Legal information and resources
When crafting or reviewing an artist commission contract, there are several legal considerations that should be kept in mind: The Lawyer’s Assistance Program (www.lapgb.org) provides assistance to artists in teaching them how to read and create contracts, whether for commissioned artworks or licensing of their own artistic works . Lawyers who provide this service to artists are reimbursed on an hourly basis for the time spent teaching the concept and preparing a simple type contract. These lawyers are not required to be entertainment attorneys but they must have a practice with some experience in representing artists or dealing with artist issues.