You may be asked by an individual, a company or a public body to create artwork for them as a commission. Delivering a commission is a working relationship between you as an artist and the commissioner, so it’s important to have this relationship recorded for certainty and clarity in a commission agreement.

In this factsheet, we will address how to approach a commission agreement and some of the clauses you should look out for when reviewing a commission agreement.

How to Approach Commission Agreements

It’s important that you ask for a commission agreement to be put in place if you are delivering a commission for clarity and consistency.

The commission agreement should clarify what will be delivered, when and how you will be paid, which intellectual property rights you retain, and what happens if there any delays or things do not go as expected.

When entering a commission, you should:

• Give yourself time to read the commission agreement carefully. Take it clause by clause and ask yourself if the clauses reflect what you have agreed with the commissioner.
• If the agreement includes anything that you are unclear about or didn’t agree to, do not be afraid to ask for an explanation or for any inconsistencies to be addressed.
• Similarly, do not be afraid to ask for clauses to be included if you think any are missing.
• Where you have made any promises such as when the work is going to be delivered or that you are able to grant rights in the work to the commissioner, make sure you can fulfil them.
• 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 under UK law.

The Commission Agreement

The commission agreement should clearly identify the work you are being commissioned to make. A description of the work might be set out in the main body of the contract or in a schedule or appendix. The description may include details such as:

• the name of the work;
• theme/subject matter/purpose;
• dimensions
• material or medium.

Check that the details of the agreement reflect what the commissioner has asked for and what you agreed to provide.

The Preliminary Design

You might be asked to provide a preliminary design of your work. Check what the agreement says about delivering the preliminary design.

• Will you have enough time after providing the preliminary design to complete the final piece?
• How many changes to the preliminary design can the commissioner request free of charge?

Consider whether any aspects of the work could change over the course of the commission. For example, if you create a digital mock-up of the work, is it possible that the colour of the final piece may not be the same as it is on the screen for the preliminary design. If it’s likely there will be a difference between the specification and the final design, make sure you state this in the agreement from the outset.

Acceptance and Completion of Work

The agreement should set out the requirements that you will need to meet for your final piece to be ‘accepted’ or ‘completed’ by the commissioner. Pay close attention to these requirements, as they are often linked to payment.

Check that the acceptance clause clearly details what you need to do for the piece to be ‘accepted’. For example:

• Do you have to send the final piece to the commissioner by a certain date?
• Is there a preliminary design that it must match?
• How long does the commissioner have to accept the work after you submit it?
• Can the commissioner ask for revisions? If so, how will this affect payment?

Intellectual Property Rights

Most commission agreements will include a clause addressing copyright. The clause should set out how much control you will have over the work that you created.

The general position under UK copyright law is that you own copyright as an artist for work commissioned by someone else, but this can be changed by contract. A commission agreement may state the commissioner is the copyright owner.

To avoid any disagreements later relating to intellectual property rights, read the clause carefully. If in doubt, refer to our Copyright Uncovered series which sets out key words to look out for and what they mean.

Check with the commissioner that you both understand what rights you retain and how they may use your work, for example:

• Will the commissioner be able to use the work how they want or can they only use it for certain limited purposes, such as online promotion?
• Will you be able to use the work for your own purposes?

Note that the general position under UK copyright law on copyright ownership for a commissioned work has changed over time. If you are concerned about who owns copyright in historic commissions, please refer to our factsheet on commissioned works here.

Moral Rights & Credit

The right to be credited (known as the ‘right of attribution’) occurs automatically when you create your work. This gives you the right to request that you’re appropriately credited for your creation.

The right of attribution is one of four rights known as ‘moral rights’. Moral rights belong to the artist and cannot be transferred during the artist’s lifetime. A commissioner may ask you to waive those rights in the commission agreement. You should consider whether you want to be able to retain your entitlement to be able to enforce your moral rights.

Retaining your moral rights allow you to state in the commission agreement how you would like to be credited for your work, including in any materials that accompany the commission.

You can find more information on moral rights here.

Payment

If you are being paid for the work that you are being commissioned to create, check what the agreement says about how and when payment will be made. Some things to look out for include:

• Is the amount in the commission agreement the correct amount you expect to be paid?
• Does payment take into account any expenses you incur or will this be covered separately?
• When will payment be made to you – on completion of commission or in stages?
• Are there any reasons why the commissioner may withhold payment? If so, are they reasonable?
• If you are VAT-registered, does the payment include VAT?

Delivery / Ownership / Insurance

A commissioned work may be made ‘off site’, which means it is created in a location other than where the work will be shown or kept. The commissioner may ask that you deliver the work to their premises and in some circumstances may even ask that you install it.

If you create a work, or any part of it, off site, you should consider:

• Who will be responsible for getting the completed piece to the commissioner?
• If you are responsible for delivering the work, does the fee covers delivery?
• What happens if the piece is damaged before it is handed over to the commissioner?

Termination

Sometimes contracts cannot be completed for various reasons. For example, if the artist is unwell and unable to deliver the piece on time. It is important to be aware of what happens if someone is unable to carry out their responsibilities. Consider whether you will be granted extra time to finish the work if for any reason you can’t deliver it by the deadline.


Disclaimer: This factsheet is offered as a general guide to the issues surrounding copyright in this area. It does not represent an exhaustive account. It is not intended to offer legal advice and should not be relied upon as such. We strongly recommend you seek specialist advice for any specific circumstances.