Copyright uncovered: what should you do if someone asks you to create a work for them?

    The DACS legal team demistify the process of creating commission agreements and the key questions to consider before agreeing to create artwork for an organisation or individual. 

    In your practice as an artist you may be asked by an individual, company or public body to create artwork for them. This is known as a commission, and can present an exciting opportunity to develop and publicise your work, with the added potential benefit of a fee due to you as the creator.

    It’s important to ensure certainty and clarity when carrying out this kind of work, with a set of agreed aims and responsibilities for both parties. To make sure that all the key aspects are covered and your rights are secured, it’s recommended to put in place a commission agreement.

    DACS has put together a factsheet on commission agreements to act as a comprehensive guide for this process. Some of the key questions to consider initially are as follows.

    What is a commission?

    A commission effectively means you are carrying out work for a specific purpose. This could be for all sorts of different opportunities, such as producing an artwork, holding an exhibition, or contributing to a project or event.

    Commissioners, who are the party you are working with, can come from all sorts of backgrounds. They could be public bodies such as arts institutions or museums, or act in the private sector, such as curators or companies.

    The nature of the of the work and the background of the commissioner can vary the relationship you have with them, and are important considerations when it comes to thinking about and negotiating a commission agreement.

    What is a commission agreement?

    A commission agreement is a document which details the work being carried out by you as the creator for the other party as the commissioner. It is a contract to which you both agree and can subsequently rely on, and will include key factors such as the nature of the work itself, delivery, ownership of the work, copyright, and payment.

    It places formal responsibilities not only on you as the creator, but also on the commissioner in terms of what they can expect from the work, as well as their financial obligations. It provides security for any compensation which you are owed under the agreement, and can preserve your rights in the work.

    An agreement documents the terms and nature of the work, securing an understanding between the two parties. Responsibilities and obligations covered under the commission can be varied, depending on the kind of work being undertaken.

    Why are they important?

    Delivering a commission is a working relationship between you as the artist and the other party as the commissioner, so it’s important to have this relationship recorded in this kind of document. You can ask for a commission agreement to be put in place, and should do so before undertaking the work.

    It is also the mechanism for you to ensure your rights are protected, and for you to receive any agreed payment for the work. Most commission agreements will include a clause addressing copyright, an important aspect of the work which will affect how it can be used in future. It’s vital to know who holds copyright, as it confers benefits on the holder, and it’s recommended that as the creator you retain copyright wherever possible.

    Details of any payment involved would also be included in an agreement, such as when you will be paid, and how much. It’s important to consider whether the agreement covers any expenses you may incur, and also whether the commissioner can withhold payment for any reason.

    When are commission agreements relevant?

    Many different kinds of opportunities may come your way as an artist. It’s advisable to put an agreement in place when you are creating work of any kind for another party, as the certainty and clarity it can provide helps you to know where you stand, and to avoid any potential disagreements which may arise.

    Even when there isn’t a payment involved, the process of making and delivering the work, along with the ongoing relevance of copyright, are helpful to secure in such a document beforehand, protecting you and allowing you to get on with the work as the creator.

    Where can I find out more?

    DACS has put together a comprehensive factsheet on the key points to consider and include when making an agreement which he recommend you read through carefully. This can be found here.

    If you are a Copyright Licensing or ARR member, you can use DACS’ Copyright Advice Service for guidance on the implications of the copyright clauses in commission agreements under UK law.

    Image: Artist Susan Stockwell

    Posted on 30/09/2021 by Bel New