From: mgresham@dscatl.UUCP (Mark Gresham)
Newsgroups: rec.music.classical
Subject: Commissioning Music (was: Re: recording rights)
Date: 25 Sep 92 22:06:47 GMT
Reply-To: mgresham@dscatl.UUCP (Mark Gresham)
Distribution: rec
Organization: Digital Systems Co,  Atlanta, Ga

In article <1992Sep22.1495.12659@execnet> "hilary miller" <hilary.miller@execnet.com> writes:
>
>Edgar Erwin, in a message to All on 09-19-92 at 11:49am, said:
>
>EE>|A general question:  When an orchestra/opera company or whatever commis
>   |a work from a composer, who then gets the performance/recording/publish
>   |rights?  Is there a standard practice, or is it different in each case?
>   |_______________________________________________________________________
>
>               Good question!  The answer is: it depends.  Typi-
>               cally, the "commission" will be a fixed fee that
>               buys the right to perform the work publicly (with,
>               perhaps, a negotiated additional payment for each
>               time the work is actually performed over a certain
>               number of times).  The author almost invariably
>               retains the remaining rights in the work.  Certain
>               of these rights are subject to "compulsory li-
>               cense" under the Copyright Act.

I have to respond.
Let's clarify all of this.  Partly because the "commission"
does not itself "buy the right to perform" with
"perhaps...additional payment" for additional performances.

From Meet the composer's booklet, "Commissioning Music":
[My comments in brackets.]

[from Page 1:]

COMMISSIONING MUSIC--WHAT DOES IT ENTAIL?

	* Asking a composer to write a particular piece of music
	for a specific purpose or event.

	* Paying the composer to create the music work.

	* Generally guaranteeing a performance and/recording of
	the commissioned piece.

[from Page 8:]

HOW MUCH DO I PAY THE COMPOSER?

The amount paid a composer depends on many factors:

* Reputation of the composer.  Composers of stature genrally ask
for and receive more money for new works than lesser known or
emerging composers.

* Budget of the commissioning party.

* Length of work.

* Royalties, performing rights income and residuals.  Composers
earn "royalties" from rental and sale of printed scores and
recordings.  Composers earn "performing rights income" each time
the work is publicly performed or aired on radio or TV.
Composers are paid "residuals" for reuse of the music, i.e. if a
TV show or series is rerun.  In many cases, royalties and
residuals are speculative and composers rely on the commission fee
for their income.

[Pages 9 & 10 feature a schedule of fees, exclusive of copyists
fees, duplicating or production costs, all which are generally
assumed by the commissioning party.  All fees are negotiable,
but represent "today's rates" for a professional composer of
reasonable reputation.  I've excerpted a few items from the list:]

Solo Clarinet, Cello, etc., 3' to 12': $1,000 - $5,000
Solo Piano, 3' to 12': $1,500 - $5,000
String Quartet, 8' to 12': $3,000 - $6,000
String Quartet, 16' to 30': $7,000 - $12,000
Full Orchestra, 8' to 12': $5,000 - $8,000
Full Orchestra, 12' to 30': $9,000 - $20,000
Concerto, 12' to  30': $12,000 - $25,000
Choral, 3' to 12': $1,000 - $5,000
Choral, 16' to 30': $6,000 - $10,000
Broadway Musical: $3,000 - $6,000 advance
                  + minimum 2% box office gross
Broadway Incidental Music: $5,000 - $7,000
Off-Broadway Incidental Music: $3,000 - $5,000
Dance, 15': $4,000 - $6,000
Opera, One Act: $12,000 - $25,000
Opera, Full Length: $30,000 - $100,000

[Consider the last item, and the fact that Giuseppe Verdi was paid
$200,000 in modern currecny to compose Aida.  He liscenced the
commissioning party to perform the opera ONCE.  Yes, ONCE.
Verdi retained ownership and all rights.  Think about it.
This item was a footnote at the bottom of page 10.]

[from Page 11 & 12:]

WHAT OTHER COSTS ARE INVOLVED?

* Copying of score, extracting and duplicating parts.  The
composer is responsible for providing a legible copy of the score.
On occasion, the commissioning party will pay to have the score
copied by a professional music copyist.  When the score is
finished, commissioning party is responsible for paying a copyist
to extract and duplicate parts for performance, [...].  In some
cases [rare] a publisher may share these costs.

* Production Costs.  Commissions for taped music for film,
television, radio, theatre, dance and video involve additional
costs of recording studio, audio engineer, assisting musicians,
tape, instrument rental, etc.
  Composers and commissioning parties should project and agree on
these costs prior to beginning the commission.

[from Page 13:}

ARE COMPOSERS INVOLVED WITH PERFORMANCES?

*Yes.  [Reasons for doing so.]

When a composer is featured as conductor and/or performer, fees
for conducting and performing are separate from the commission
fee.  [Meet the composer has a small funding support program for
composer participation in programs.]

[from Page 15:]

WHO OWNS A COMMISSIONED WORK?

* Under U.S. Copyright Law, the composer does.  Copyright
ownership gives the composer exclusive rights to perform, print
and mechanically reproduce, i.e. record the music, and to sell and
disribute copies and recordings.  Composer may assign rights to
publishers to print and record the work, and to rent, sell and
distribute copies and recordings.  Publishers may then pay composers
a percentage of the income derived from ssales, rental and other
uses of the score, parts, sheet music, etc.  The royalties are
negotiable depending on a composer's individual contract with his
or her publishing compoany.

Most composers belong to a performing rights society that licenses
their music to be publicly performed and broadcast.  [for example,
I'm a member of ASCAP]  [They] collect fees from radio and TV
stations, performing groups, colleges and other users of music and
distribute income to composer/publisher members.

[from Page 16:]

Composers should in all cases retain ownership of their original
manuscripts or tape works.  [...]

Ownership of orchestra or chamber music parts generally resides in
the composer or publisher, though commissioning parties may have
use of parts during the period for which they have exclusive
performance rights.

[A caution to composers here: Make sure your contract includes a
specific time limitation within which the commissioning party must
exercise exclusive first perfomance rights -- or you could be VERY
sorry!  You can wind up with a work that is "sat upon."]

[from Page 17, and the part of Hillary's answer that made me want
to respond:]

MUST THE PREMIERE BE LICENSED?

* Yes.  All public performances must be licensed.  Most users of
music pay annual fees to the performing rights societies to use
their entire repertory.  If the commissioning party or performing
group does not have a blanket license from the appropriate
performing rights society, [...] an individual license is secured
directly from the composer or from the performing rights society.

[An aside here: purchase of music does not convey to the purchaser
the right to perform that music in public.  Many people are
surprised by this, but it is true.  The license to
perform the work must also be paid.]

[from Page 18:]

WHAT ARE THE COMMISSIONING PARTY'S RIGHTS?

[As I have said elsewhere, you can put nearly anything in the same
contract that includes the commission itself.  The following is not
necessarily indicative of what is desirable in such a contract:]

* The composer genrally licenses the commissioning party to
exercise certain rights for a limited period.  Rights are
negotiable, though typical agreements grant the commissioning
party some of the following:

	* Exclusive right to the world premiere performance.

	[Most common.  The premiere performance is still
	licensed with a fee distinct from the commission.
	Example: my own "Fanfare" for Brass Quintet was
	commissioned by a private party, and I received
	my credited disbursement from ASCAP for the premiere.]

	* Exclusive right to perform the work within a reasonable
	period, e.g. one year.

	[Clarification:  This means the right to perform at the
	exclusion of all other performers for that period of time.
	Example: Canadian Brass and Peter Schickele's "Hornsmoke"
	was a commission that included such an agreement.  It is
	not the same issue as I mentioned earlier, which is
	limiting the time frame within which the first rights must
	be exercised.]

	* Exclusive right to premiere the work in other cities.

	[DON'T give this to the commissioning party, unless there
	is a VERY good reason to do it, such as commission by
	a touring ensemble which will commit to such performances.
	Reason: first performance rights for a major city, state
	or region are significant negotiating tools for the
	composer and a desired commodity for performing ensembles
	for whom such area premieres can mean awards and funding.

	* Right to be creditied as the commissioning party on all
	published editions of the score, tape and/or recording,
	and in programs for subsequest performances by
	non-commissioning parties.

	[Normal, reasonable, and of no harm to the composer.
	(A benefit if anything.)  Some situatuions, like state
	arts grants, also include the presence of logos in
	the advertisements and programs of the premiere.  Example:
	a new work of mine to be completed this fiscal year under
	a GA Arts Council administrated grant must include the
	Arts Council's logo (for which they've supplied many
	camera-ready copies) on all printed advertisements and
	programs.  Simple, effective.]

	* Right to negitiate rental fees for use of the score,
	parts, tapes and/or recordings with the music publisher,
	or composer if no publisher is involved.

	[Basically, getting a better deal on performance materials
	as a premium for commissioning the work.For example, use
	of materials "at cost".  Reasonable, and tactful on the
	part of the composer.]

[from page 19 & 20, the summary:]

WHAT BELONGS IN A COMMISSIONING AGREEMENT?

Rights and responsibilities must be fully covered in a Letter of
Agreement [Contract].  Include the following:

	* Identification of Parties.

	* Description of Work.  Include type of work, length, and
	instrumentation, i.e. full orchestra, percussion ensemble,
	[...]

	* Date of Delivery of Completed Work.  Plan far in
	advance, allowing plenty of time for  the composer's
	creative process, rehearsals and performances.

	* Amount of Fee and Method of Payment.  Generally, the
	commissioning party pays 50% of the fee on signing the
	commissioning agreement and the remainder in installments
	or upon completion of the work.

	[Don't count on this from state arts agencies, which can
	vary in behavior from paying nothing until completion of
	project to fronting 80% of the total grant amount.]

	* Cost Allowances for Copying, Extracting and Duplicating
	Parts, and/or Tape Production.

	[Again, not a part of the commissioning fee proper, and
	should appear as a separate item in the agreement.]

	* Rights of Commissioning Party re performances,
	recording, and other uses.

	* Ownership of materials, i.e., score, parts, tapes.

	[COMPOSER SHOULD RETAIN ALL ORIGINALS!  Copies are
	negotiable.  In many cases, where publishers are
	involved and the score is to be available only by
	rental, the publisher retains ownership of the physical
	copies of scores, parts and and tapes used for performing
	gets them back from the performers.]

	* Rental Fees, if applicable.

	[May be applicable re the above situation.]

	* Proper Credits for the Commissioning Party and Composer.

	* Promotion, Advertising and Exploitation of Commissioned Work.

	[Seriously, this is an issue.  Who bears the cost of
	promoting the premiere.  Generally the commissioning party
	should or the premiering performers.  There
	responsibilities should be spelled out, as it ccan be an
	expensive and time-consuming task.  (Plus, a smart
	composer will also do additional promotion.)

[End of excerption from "Commissioning Music."]

There.  Now get your own free
copy of the complete booklet from:

MEET THE COMPOSER, Inc.
2112 Broadway, Suite 505
New York, NY 10023

P.S. Caveat:  The above is "mainstream" for the business of
composing.  It is unlikely that a student, hobbyist, or
fresh-on-the-scene composer is going to be able to formalize
agreements in those ways under all circumstances, nor would they
be likely able to negotiate those listed commissioning fees.
HOWEVER, this is information to provide a yardstick by which to
measure one's own attempts at "being a professional composer."
Plus, it's a good guide for how not to be "had" when trying to
learn the ropes of the business.  You need to know what to ask
for, and you especially need to know your legal rights.

P.P.S.:  Another excellent free booklet from Meet the Composer is
"Composers in the Marketplace."  Ask for it at the same time.

Cheers,

--Mark Gresham

dscatl!mgresham@gatech.edu

==========================