Composing for Orchestras and Other Ensembles, Part 2: Doing the Deal
In this second installment in a two-part series, Marc Ostrow offers some timely tips on how to negotiate a commissioning contract after securing a gig to compose for an orchestra or other ensemble.
Last time, I told you how you can find someone to commission you to write a new composition and how much you might get paid for your trouble. So, let’s assume you’ve convinced the Schenectady Chamber Arts Brigade to pay you $18,000 to compose that 12-minute piece for soprano, accordion, bag pipes, didgeridoo and percussion you’ve always wanted to write. Now it’s time to negotiate the commissioning agreement.
What goes in the SCAB contract? Of course, your name, the commissioner’s name, the length of the work and the instrumentation all are spelled out. You’ll also agree that the work is original, that it doesn’t infringe upon anything, that any text, samples or quotations you include have been cleared and that the agreement won’t violate any other contracts you’ve entered into.
Typically, you’ll be paid your fee in two parts: half on signing the contract and the rest when the score to the work is delivered. This brings me to a major pitfall: preparing the actual written music. Let’s assume the SCAB piece requires 10 performers plus a conductor. They’ll each need music. And that costs money. Even if you write with Finale or Sibelius, it could cost a few grand to create performance-quality score and parts for this piece. These costs can exceed $10,000 for orchestral works; a full-length opera, with soloists, orchestra and chorus, can easily cost more than $50,000 to prepare. Make sure that in addition to the commission fee, there’s a provision to pay for some, if not all, of the prep costs.
So what does SCAB get for the 18 grand it paid you? They get one or more exclusivities. You’ll always want to limit the exclusivities, as they prevent others from performing your piece and earning you royalties, which can be in the hundreds of dollars per performance from the public performance fees and renting out the score and parts. Any commissioner will get the exclusive right to present the world premiere of the work. If you’ve got a lot of clout or a good lawyer, that’s all the commissioner may get.
Other typical exclusivities include: the right to perform the work for a certain period of time (e.g., one year), the right to present premieres in other territories and the right to make the first recording of your new masterpiece. If there’s more than one commissioner, internal squabbles over who gets the world premiere, recording rights and what territories are reserved for each of them will also need to be resolved. I once engaged in major international diplomacy over several months to sort these issues out in one agreement among six different commissioners in five different countries on both sides of the Atlantic!
There should be limits on liability in the event of late delivery or failure to complete the work. I also like to spell out the precise dates and venues of any performances covered under the contract. I also try to get the commissioner to give the composer a free archival recording of the premiere to help secure future performances of the work, although some of the major orchestras will resist this because of union issues. Finally, make sure the commissioner pays reasonable travel, hotel and per diem expenses if the world premiere takes place far away from where you live, and that you get free tickets to the world premiere for your family, friends — and your lawyer.
Marc D. Ostrow is a copyright and entertainment lawyer in New York City, as well as a songwriter and composer. Previously, he was the head of the NY office of classical music publisher, Boosey & Hawkes, where he started the jazz division. He also served as a Senior Attorney in BMI’s Legal Department. http://www.ostrowesq.com
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