Once agreement on the terms has been reached through negotiation, this should be recorded in writing. Whatever form the final agreement takes, it is recommended that members seek advice from the ISM before signing it.

The following matters need consideration:

1. Who is to own the rights in the composition?

As a matter of law, the composer will own the copyright in the composition since it is an original musical work. The composer can deal with the copyright in two ways:

1.1 He or she can grant a licence, under which arrangement he or she continues to own the copyright, but has given permission for the copyright piece to be performed.

a) If a licence is to be granted, it must be clearly understood by both parties whether it covers a period of time or a number of performances, or some combination of both (for example, a licence could be for six months, the piece not to be performed more than eight times in such period without the composer’s express agreement). Both parties should also clarify whether any geographical restrictions apply to the licence – it could be worldwide or restricted to the UK or any other (specified) area.

b) It should be clearly understood by both parties whether or not the licence is ‘exclusive’ - that is, whether the person to whom the licence is granted (the commissioner) is the only person to whom the composer can grant a licence, or whether the composer is free to grant more than one licence at the same time. If the licence is to be exclusive, members should be aware that this will prevent any performance by them of the composition.

c) The licence should make clear what is covered – whether it includes the right to make recordings (audio or visual), broadcasts, or performances only.

1.2 He or she can assign the copyright in the composition. Under this arrangement, the ownership of the copyright passes from the composer to the commissioner and the composer no longer has any rights in relation to the composition.

a) It should be noted that if the composer assigns the copyright, he or she loses all control over the composition. It is entirely owned by the person to whom the rights have been assigned, and he or she will not be able to dictate how, when, where or by whom it is performed or recorded.

b) The composer may not own the copyright in any lyrics in the composition unless he or she wrote them. Any assignment of copyright for a composition with lyrics will require an assignment from the author or lyricist, unless the words are out of copyright.

c) The member should consider if he or she is employed or self-employed as this will affect the ownership of copyright and the ability to assign it. The normal rule is that the copyright in any artistic work produced by an employee in the course of an employee’s employment will be owned by the employer rather than the employee. Work created in the employee’s spare time is not covered by this rule, but some contracts of employment specifically provide that the copyright in any works produced by the employee during the period of employment will vest in the employer.

1.3 The composer will own moral rights in the work which include the right to be identified as the author and the right to object to derogatory treatment. These rights cannot be assigned but can be waived. Members should consider carefully before waiving any rights.

2. What are the financial arrangements for the commission?

The question of the overall fee is one for negotiation between the composer and commissioner.

• Obviously, the size of the commissioner will influence the level of fee – a small amateur choir is not going to have the same resources as a major broadcaster.
• Members can refer to the ISM fees survey for guidance on the general level of fees in particular areas.
• Consider whether the fee should be broken into elements reflecting the actual creation of the work and any subsequent use of the work.
• If the copyright is to be assigned, consider whether it is possible nonetheless to negotiate a royalty for any performances or other exploitation of the work.
• If the copyright is to be assigned in its entirety to the commissioner without any royalty arrangements, the fee should reflect the fact that the composer will not receive any future income from the composition.
• An agreed fee is sometimes paid in stages – for example, the first on acceptance of the commission, the second on provision by the composer of a first draft (or first movement, or first act) and the final one on delivery of the finished work.

This is obviously going to depend on the scale of the work commissioned and on the composer’s workload. However, a date for delivery of the finished composition should be clearly agreed between the parties.

4. Membership of the Performing Right Society (‘PRS’)

It is recommended that all composers whose work has been performed publicly should consider joining the PRS. Membership will assist with the fast and efficient payment of royalties. Membership is available for a one-off fee of £100. Documentary proof of at least one public performance or broadcast of a composer’s work is required in order to qualify for membership of the PRS. Composers whose works have been commercially recorded should also consider membership of the Mechanical Copyright Protection Society (‘MCPS’).

This is a brief overview of some of the most important matters to be considered. Members are reminded of the importance of seeking professional advice before entering into any legally binding arrangements, and it is recommended that advice is sought from the ISM on any potential contract.

Refer also to Information Sheets:

01/3 ISM Performers & Composers Section Code of Ethics
02/4 Professional Fees: Concert & Broadcast Commissions (PDF)
02/7 Professional Fees: Arrangers, Orchestrators & Copyists (PDF)

Available to Members Only: (members must log in to view these)

M1/1 Guidelines on the Use of Written Agreements
M1/2 Copyright

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