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Contracts

Q: Drawing up a commissioning agreement

How do you draw up a commissioning agreement?

A: The principal points which need to be addressed and which I will deal with in turn are (1) The writer's 'brief' (2) His timetable for doing the work (3) His remuneration (4) Copyright in the finished work and (5) Other consequential matters.

Where the commissioned work is to adapt a film or novel or other pre-existing literary or dramatic work into a stage play the 'brief' - an outline of what the writer is required to do, and which should be incorporated by schedule or appendix into his contract - may be quite short and say just that, perhaps also making it clear that the principal characters and storyline of the original are to be preserved, or not, as the case may be.

Similarly where the brief is simply to write the lyrics and/or music for turning a play into a stage musical or to write the 'book' (dramatisation) for existing treatment and songs, the brief may be comparatively simple and straightforward. However, where a dramatic work is being commissioned from scratch, the commissioner will need to spell out in some detail what he is trying to achieve in terms of a finished work, if he is to minimise the possibility of disappointment.

The development timetable will need to allow for changes to be made from time to time to draft versions en route to the finished work. Thus, there should be provision for several interim drafts at specified maximum intervals, with the writer being obliged to use reasonable endeavours to satisfy the commissioner's reasonably required changes, and a long stop date for the final, complete version which the commissioner should then have to elect either to accept or reject, so that the writer's final instalment of his writing fee will be conditional on such acceptance. Obviously also, the contract should allow for any extensions of time which may be agreed by both parties as the work proceeds.

There will typically be two parts to the writer's remuneration. Firstly he will be paid a fee for his services, usually by instalments. For example, he might get the first instalment on engagement, the second on delivery of first draft and the final one on acceptance (if any) of the finished work. If the work is accepted and subsequently exploited by or under licence from the commissioner or by the latter's successors in title, then apart from and in addition to his 'fee' the writer will or should get a royalty for any exploitation of his work in any and all media. A one-off, total buy-out for a fee and no royalty is extremely rare in the case of a literary, dramatic or musical work, though not unheard of. The amount of the fee and royalty is in all cases a matter for negotiation and there are too many variables for me to suggest a norm.

Copyright is very important here, because in the UK, unlike America where there is a legal doctrine known as 'work for hire', copyright does not automatically vest in the commissioning party but will remain with the writer unless and except to the extent that the parties may otherwise agree. However, where a substantial writing 'fee' is being paid, it would be usual for the commissioner to seek to insist on an assignment of copyright in the finished work, but not necessarily any discarded material, to be assigned to him (or as he may direct) on acceptance and final payment of the writing fee.

Sometimes there may be provision for territorial restriction/extension or for reversion of copyright to the writer on failure to exploit the work to a specified extent within a specified period of time but again this is a matter for detailed negotiation. There is clearly no reason for the writer to resist a permanent assignment of copyright in the case of an adaptation which will have no standalone life of its own without the adaptation right vested in the commissioner. If there is to be no such assignment to the commissioner, then he will expect an exclusive and probably irrevocable licence to exploit the work, either for a long specified period or possibly for the full period of copyright, the latter being almost as good as an assignment, subject to contingent reversion as above.

Finally, the contract between the parties should contain all the other usual features of one between a writer (or other rights owner) and a stage producer, eg. those relating to subsidiary media exploitation, accounting procedures, writer's accreditation, attendances and expenses, house seats allowances, royalty pools, with-holding tax and so forth. If an adaptation of an existing work is involved, the writer will want to know that the commissioner has the right to adapt, and so the writer is likely to require a warranty and indemnity from the commissioner in respect of any claims by the owner of the original work.

First published 8th February 2007