Commissioning & New Work

When to Use This Skill

Use this skill when a nonprofit arts organization — theater, orchestra, dance or opera company, presenting organization, community arts center, gallery — is paying an artist to create a new work or shepherding one through development. Concrete tasks: drafting or reviewing a commission agreement (play, musical, concert piece, dance, opera, site-specific or public artwork); setting the fee and payment schedule; structuring approvals, billing, and first-production rights; planning and budgeting the development pipeline (table reads, readings, workshops, labs); structuring a co-commission or consortium; running a gallery consignment program; or responding to a municipal percent-for-art opportunity. Trigger phrases: "we want to commission a new play for our 50th season," "the playwright's agent wants approval over the director and casting," "two other theaters want to co-commission with us — how do we split it," "who owns the copyright in a commissioned work," "our board wants a work-for-hire clause in the commission contract," "the city percent-for-art program wants a proposal from us."

Boundary: This skill covers commissioning agreements and the new-work development pipeline for the organization as commissioner or developer. Licensing or producing an existing play, musical, film, or venue music (Dramatists Play Service, Concord, MTI, R&H quotes; ASCAP/BMI/SESAC/GMR; grand-rights requests to publishers) is nonprofit-arts-performance-licensing. Union rules that govern development activity — Actors' Equity (AEA) reading, workshop, lab, and development contract tiers, and AFM/IATSE equivalents — are nonprofit-arts-union-agreements-visas (this skill tells you where each pipeline stage touches a union rule and routes there). Deciding whether and when a new work occupies a season slot, and holdover/extension economics, is nonprofit-arts-season-planning. Contracts with teaching artists and school-based residencies are nonprofit-arts-education-programs. General contract risk review, insurance, and indemnity posture outside the artistic specifics covered here is nonprofit-risk-management. Underwriting a commission with a sponsor package is nonprofit-arts-season-sponsorship; arts-funder applications (NEA, state arts agency, foundations) are nonprofit-arts-grant-writing; who holds budget authority to greenlight a commission is nonprofit-arts-ad-ed-partnership. Individual artists' careers, agents, and museums' collections work are out of the whole pack.

The IP Landscape — Read This Before Drafting Anything

Commissioning law is inverted from what most nonprofit managers assume: the organization almost never owns what it pays to create. Get this right first because every other clause (approvals, billing, options) is downstream of it.

• Playwrights customarily retain copyright — never ask them to assign it. The Dramatists Guild (DG) Bill of Rights is explicit: dramatists own and control their work, do not assign their copyrights, and do not engage in work-for-hire. The DG's Form of Commission Agreement for Plays and Musicals — the de facto US template — is built on the author retaining "sole ownership of the play" and control over "additions, changes, and modifications." A commission is a fee for the author's services, not a purchase: it is not a royalty, not an advance, not an option fee against royalties, and the copyright stays with the dramatist even though the commission and the performance license can live in the same signed document as two separate transactions.
• Work-for-hire is a trap in the arts — and usually a nullity. Under the Copyright Act, a specially commissioned work is work-for-hire only if it falls within nine enumerated statutory categories and there is a signed written work-for-hire agreement. A play, libretto, or choreography commissioned from an independent artist fits none of the categories, so a work-for-hire clause in a commission contract generally fails legally — it does not transfer the copyright to the org; it just poisons the relationship (the DG treats such clauses as contrary to industry standards) and creates mutual confusion about who can license what. If the org's counsel or board proposes work-for-hire language, push back: the org gets what it actually needs through an exclusive option, a defined first-production window, and subsidiary-rights participation (below), not through ownership.
• Composers vary — check the genre's custom before drafting. In concert music (orchestral, chamber, choral), composers also customarily retain copyright; the commissioner typically buys premiere exclusivity for a defined period and shares in credit. In film and much commercial media the opposite is true (composer-for-hire is standard), which is why the habits collide when a theater commissions a score for a musical or an opera: the dramatico-musical rights to a commissioned score must be nailed down in writing. In practice, a musical's book writer, composer, and lyricist are co-authors of a single joint work and the org licenses from all of them.
• Grand rights are why a commissioned musical needs its own rights clause. ASCAP (and BMI/SESAC) members license only nondramatic ("small") rights through their PROs; an ASCAP license never authorizes a dramatic performance — the performance of a dramatico-musical work (a musical, opera, or story-driven dance work) requires grand rights licensed directly from the copyright owner. For a commissioned musical, the commission agreement should therefore include (or clearly promise) a production license for the premiere, since the org cannot perform the work on a venue's ASCAP blanket license. Grand rights have no statutory definition — the industry works from custom — so define the granted performance rights explicitly in the contract.
• Put collaborator ownership in writing. In Thomson v. Larson (2d Cir. 1998 — the Rent dramaturg case) a contributing dramaturg's claims had to be litigated because the collaborators never specified rights in a contract. The DG standard: a director or dramaturg is a co-author only if they collaborated from inception, made a copyrightable contribution, and there is a mutual written agreement to be co-authors; contributions the author chooses to incorporate belong to the author. Your commission contract should include a collaboration/co-authorship clause for team-written work and a clarification that director/dramaturg notes are suggestions the author may adopt.
• Derivative works cut both ways. Sets, costumes, and staging created for your production are ordinarily derivative of the play; without the author's permission they generally cannot be exploited separately (e.g., streamed or toured). If the org expects to film, stream, or archive the premiere, those media rights must be in the production license — see nonprofit-arts-performance-licensing for the streaming-rights mechanics.

Part 1 — Anatomy of the Commission Agreement

Draft or review against this clause checklist. The DG's model commission agreement covers the writing of the piece plus the producer's right to acquire an option to produce it — the premiere itself requires a separate production contract, a distinction most first-time commissioners miss.

1. Parties and scope. Name the author(s) exactly; for a musical, all book/music/lyrics writers. Define the commissioned work: subject or source material, projected length, and — for adaptations — whether the author or the org secures underlying rights (a commission to adapt a novel is worthless if the org has not cleared the novel; allocate that duty and cost explicitly).
2. Commission fee and payment schedule. There is no standard commission fee — the DG is explicit that the amount is negotiable, driven by the author's reputation and experience and the commissioner's practices and means (benchmarks in Part 3). Pay in installments tied to delivery milestones, not in a lump on signing. A common pattern is roughly a third on signing, a third on delivery of first draft, and the balance on delivery of an agreed later draft or the start of rehearsals (a 2026 small-theater RFP example: $5,000 paid in three installments, plus a separate research/travel budget). Never make the final payment contingent on the org "approving the art" (see the approvals trap below).
3. Delivery milestones. Set real dates: outline/treatment, first draft, revision(s) after a development stage, final draft. Attach a development schedule (Part 2) if workshops are included in the fee or contracted separately. Include a mechanism for extensions (commissions routinely run late) and a consultation right: if a milestone is missed by more than a defined period, the org may convene a meeting and/or pause later installments — not terminate unilaterally.
4. Approvals and consultation rights — the artistic-censorship seam. The org should hold consultation and approval rights over production elements: director, cast, designers, venue, and the production's cuts (which are negotiated, not imposed). The author holds approval over the text — the DG standard is that no changes or additions may be made without the author's consent. Do not draft "the theatre may require changes to the play" language: it is contrary to industry standards, unenforceable in practice (the author simply declines to license), and it is the single most common reason agents reject a commission offer. If the org has content concerns (language for a family audience, funder-imposed content requirements), handle them up front in the commission's scope description, not as a mid-process veto.
5. Option / first-production rights. The org's core economic right: an exclusive option to present the world premiere, exercised within a defined window after delivery (a sample commission structure grants the producer the right to purchase an exclusive world-premiere option, with production terms negotiated on acceptance of the completed work; Canada's PACT/PGC standard clauses treat 52 weeks as a minimum exclusivity period for premiere/commission contracts). Specify: option exercise deadline, production window (by when the premiere must open — commonly 12–36 months), territory (usually North America for the premiere), and reversion — if the org does not produce within the window, premiere rights revert to the author. An option is not a license: the premiere still requires the separate production contract, with royalty terms.
6. Billing and credits. Contract the credit precisely: "Commissioned by [Org]" customarily appears above the title on the title page, in advertising, and in the premiere's press materials; assign funder credit lines (e.g., a named commissioning fund) and whether co-commissioners share billing. Make the commissioning credit perpetual in the work's licensing boilerplate — when the play is later licensed through Dramatists Play Service or Concord, the commissioning credit follows the work (this is the org's durable return on its investment; see Part 4).
7. Subsidiary-rights participation — small, time-boxed, income-based. It is accepted for a commissioning producer to take a share of the author's future income from other productions and media, but the DG's norms are strict: participation should apply only after a professional premiere (a full production, Equity cast, designed sets/costumes/lights, a significant run of consecutive paid public performances — the DG's illustrative threshold is 21 paid performances with a press opening and no more than eight previews), be based only on income the author actually receives, be limited in duration, and be geographically bounded (e.g., US and Canada). Typical asks run in the low single digits to ~5% of the author's subsidiary income for a few years. Do not demand a share of rights the author has not yet sold, and never demand it in perpetuity.
8. Media, recording, and digital rights. State what the org may do without a separate negotiation: archival video, promotional excerpts, cast-album or streaming rights reserved or granted. For readings/workshops, confirm what may be recorded. New-play contracts increasingly need explicit language on AI use of the text — Scotland's updated standard play contract (effective April 2026) added AI, recording/filming, and access provisions, signaling where drafting practice is heading.
9. Warranties and indemnity. Author warrants originality (or cleared underlying rights); org warrants payment. Keep mutual indemnities proportionate and route the org's overall insurance posture to nonprofit-risk-management.
10. Kill fee and unwind. If the org cancels the commission mid-process, define what is owed (usually installments already due plus a cancellation payment), and what happens to any development materials.

Part 2 — The Development Pipeline and What Each Stage Costs

New work is developed in stages, and each stage has a distinct format, cost profile, and union touchpoint (rates and contracts for every stage route to nonprofit-arts-union-agreements-visas).

• Budget the pipeline honestly. A widely cited case study of a mid-size company's commissioned play shows the pattern: the commission fee was $10,000, while investigation ($36.5K), development ($62.3K), and production elements ($71.2K) pushed total investment to roughly $170,000 before the premiere — and field commentary notes the cumulative development cost of a new play across institutions routinely exceeds the royalties it generates. The commission fee is the smallest line; do not sell a commission to the board as if it were the whole cost.
• Pay writers for development time separately from the commission fee. Playwrights are paid as property owners, and a commissioning fee buys the writing — a workshop or reading week is additional labor and should carry an additional fee (union scale or better). Budget development artist fees, director, dramaturg, stage manager, and space for every stage in the table above.
• Buy rehearsal time where funders will fund it. The Edgerton Foundation New Play Awards (administered through TCG) exist precisely to fund extra rehearsal and development time with the full creative team before a world premiere — 2025 awards totaled $783,000 across 16 premieres, and the program has invested roughly $19.7 million in 569 productions since 2007. If your world premiere is on the calendar, ask whether an Edgerton application is in play and route the writing to nonprofit-arts-grant-writing.
• Sequence deliberately. Table read → revise → 29-hour reading → revise → workshop → premiere is the classic arc for a play; musicals add music-learn time and often a second workshop. Build each stage's outcome into the delivery milestones in the commission agreement (Part 1, item 3) so the schedule is contractual, not aspirational.

Part 3 — Commission Fee Benchmarks

There is no standard commission fee in the US — the Dramatists Guild says so directly and tells both sides the number is a function of the author's track record and the commissioner's means. Use these anchors, then verify:

• Treat any quoted "standard rate" with suspicion. If a user or counterparty cites a US standard schedule — including anything resembling "SPAA/SPN" rate cards — verify it before repeating: no such US theater commissioning rate standard exists, and the closest real instruments are the DG's model agreements (terms, not prices) and the published comparators above. Say "no standard fee; here are the anchors" and price the commission against the org's budget, the writer's currency, and the pipeline cost (Part 2).
• Fee vs. expenses. Keep the creative fee separate from research, travel, and workshop costs; funders increasingly expect both lines.
• Advances and offsets. A commission is not an advance against royalties — do not draft royalty recoupment language into the commission fee. If the org wants an advance, that belongs in the production contract.

Part 4 — Co-Commissioning and Consortia

Co-commissioning lets two or more orgs share a fee (and pipeline costs) they could not each carry alone, and gives a new work multiple production futures. Structure it deliberately:

1. Split the fee and the labor in writing. Equal thirds among three orgs is common for fee and workshop costs, but assign concrete duties: who hosts which development stage, who provides dramaturgy, who fronts the Edgerton or funder application, who handles contract administration with the agent.
2. Fix the premiere pecking order. Decide which partner premieres and in what season. A commission agreement grants an exclusive world-premiere option to one partner; the others hold first refusal rights for subsequent productions in their territories within defined windows (Canada's PACT/PGC clauses define a right of first refusal as the right to match or better any offer for a specified period and territory — a useful drafting model). Without a documented order, partners end up waiting on each other while the play goes stale.
3. Billing. Contract the credit — "Co-commissioned by A, B, and C" — and whether each org's credit appears in all partners' productions and in the work's future licensing boilerplate.
4. Post-premiere rights. Each partner should pre-negotiate (or pre-fix the framework for) its subsequent-production license: royalty rate, window, territory. The DG subsidiary-rights norms (Part 1, item 7) cap what the partners can collectively take from the author's future income.
5. Use the consortium model for cost-sharing at scale. The Oregon Shakespeare Festival's American Revolutions cycle — a ten-year program (2008–2018) commissioning up to 37 plays — shows multi-year, funder-backed commissioning programs; individual commissions were co-commissioned with partners (e.g., Indecent, co-commissioned with Yale Repertory Theatre). For spreading production risk on a single play, the National New Play Network's Rolling World Premiere program is the field model: three or four member theaters, one playwright, an 18-month collaboration, and three separate, distinct productions of a previously unproduced play, with NNPN funds and facilitation — over 100 plays and more than $1 million in support to date. A rolling premiere converts the "one-and-done" premiere into shared cost and shared audience-building.

Part 5 — Gallery Commissioning and Consignment

For nonprofit galleries and exhibition spaces, the default structure for selling artists' work is consignment, not purchase: the artist keeps title until sale, the gallery acts as the artist's agent, and the artist is paid the sale price minus the gallery's commission.

• The split. An even 50/50 artist/gallery split is the most commonly cited industry norm, with most galleries keeping between 30% and 60% depending on services, pricing level, and market. Do not improvise: pick the split deliberately and state both the retail price and the artist's net on the inventory list.
• Know your state's consignment rules. Written consignment agreements are legally required in some states (Missouri, for example, requires a written contract when art is given to another for sale to the public), and several states give consigned art special protections. In New York, sale proceeds the gallery holds are trust funds held for the artist's benefit — not general revenue the gallery can spend. Have counsel confirm the org's state treatment (route general risk to nonprofit-risk-management).
• Consignment agreement clauses (mirror the field's standard art consignment agreement, published by Americans for the Arts): agency scope (exclusive or non-exclusive); duration; inventory list; pricing authority; the commission; transportation responsibilities; responsibility for loss or damage and insurance while on the premises; fiduciary duties; payment timing after sale (30 days or less is the norm); return-of-unsold-work logistics; and whether the artist retains reproduction rights (usually yes — the gallery gets display/promotion use only).
• Consignment is not representation. A consignment agreement covers specific delivered works; a representation agreement hands the gallery authority over the artist's broader career (pricing, exhibitions, other venues). Nonprofit galleries should default to consignment and avoid broad representation language.
• Commissioning new visual work (a piece for a lobby, a donor wall, a site-specific installation): use a deposit-and-milestone structure — signing, maquette/design approval, fabrication, installation — with the design approval spelled out as consultation on stages (the artist retains authorship), plus an explicit fabrication warranty, insurance during install, and a maintenance plan. Copyright normally stays with the artist, with the org taking display and promotion licenses; commission the fabrication contract separately when the artist does not build.

Part 6 — Public-Art Commissioning Basics

When a city, county, developer, or the org itself initiates outdoor or civic artwork:

1. Percent-for-art is the funding engine. Hundreds of US jurisdictions (350+ programs) require that a percentage — typically 1–2% of eligible construction budgets — fund public art, via municipal public-art programs (Los Angeles's Department of Cultural Affairs and Philadelphia's Office of Arts, Culture and the Creative Economy run canonical versions). The org can be a commissioner, a fiscal partner, or a host site; the ordinance and program guidelines control the money, so read them first.
2. The selection process is RFQ then RFP. The standard civic sequence: a Request for Qualifications (credentials, images, statements — not project designs), shortlisting by a panel, then either a design proposal (RFP) stage or direct artist selection. Two-stage processes mean the org must budget proposal-phase stipends — the field's published guidelines recommend $1,000–$2,000 for commissions under $100,000 and $2,000–$5,000 for budgets of several hundred thousand dollars and up, plus stipends for maquettes or digital models. Never ask shortlisted artists to design for free.
3. Contract the milestones. Field standards call for milestone payments that fund fabrication as it happens (e.g., a payment at 50% of fabrication), proposal contracts that precede the fabrication/installation award, and artists' site visits at the commissioning agency's expense. Some jurisdictions (one published municipal policy example) require a maintenance set-aside of ~10% of the project budget — check whether your program's ordinance does.
4. Select the artist, not the artwork, and involve the public. CAA's public-art guidelines: commission the artist based on qualifications, then engage the site community — stakeholders before the RFQ, and residents reviewing maquettes, renderings, and plans after selection. Public-art controversies are process failures; a documented engagement trail is the org's best defense.
5. Rights in public art. The artist normally retains copyright in the work; the commissioning agency takes licenses (display, documentation, promotion). VARA (the Visual Artists Rights Act) grants artists of works of visual art moral rights — attribution and integrity — that are personal and non-transferable; a waiver requires a written instrument signed by the author. If the contract needs removal, modification, or relocation rights, address VARA explicitly with counsel before signature. Advise the artist to have a lawyer review the commissioning agency's contract — and if the org is the issuing agency, expect that advice.

Standard Deliverables

1. Commission agreement draft or redline — every Part 1 clause addressed, with deviations from the DG model flagged, approvals framed as production-element approvals, option/production window/reversion explicit, and subsidiary-rights participation time-boxed.
2. Development budget and pipeline plan — stages from table read through premiere with costs, artist fees, union touchpoints flagged for nonprofit-arts-union-agreements-visas, and funder targets (Edgerton, commissioning funds).
3. Co-commissioning memo — fee/labor split, premiere order, billing, post-premiere rights framework, and a partner-side comparison of what each org receives.
4. Gallery consignment kit — consignment agreement, inventory sheet, state-law check, and split rationale.
5. Public-art project plan — program/ordinance summary, RFQ→RFP timeline, stipend and milestone payment schedule, engagement plan, VARA and maintenance notes.

Common Failure Modes

• Work-for-hire clauses in commission contracts. The board asks for ownership; counsel copies an employment contract. The clause is generally legally ineffective for commissioned plays, violates field standards, and loses the writer. Fix: get the org's value through option, production window, billing, and modest subsidiary participation.
• Approving the art. Drafting text-approval rights for the org reads as censorship and gets the offer rejected by the agent. Fix: approvals over production elements; content fit handled in the commission scope before signature.
• Treating the commission fee as the budget. A $10K–$15K fee with no pipeline budget strands the play at first draft. Fix: budget table read → reading → workshop → premiere with all artist fees, and pursue Edgerton/TCG-style production support.
• No reversion clause. The org holds premiere rights indefinitely without producing; the writer cannot move; the field remembers. Fix: hard production window with automatic reversion.
• Subsidiary-rights overreach. Demanding 10% of all the author's future income in all media forever — contrary to DG norms and a reputation killer. Fix: low single digits, income-based, a few years, defined territory, post-professional-premiere only.
• Musical premiere without grand-rights language. The org assumes its ASCAP venue license covers performances of the commissioned musical — it does not; dramatic performance rights come only from the copyright owners. Fix: the production license (or an explicit grant in the commission agreement) covers the premiere.
• Co-commission with no pecking order. Three orgs split the fee and each waits for another to premiere. Fix: contracted premiere order with windows and first-refusal framework for subsequent productions.
• Free public-art proposals. Shortlisted artists design for free (or the org pays nothing at proposal stage). Fix: stipends per the CAA benchmarks before the RFP goes out.
• Stale fee claims. Repeating a "standard" commission rate — or an unverifiable rate card — to the board. Fix: no standard fee exists; present the verified anchors and the org-specific budget.

Verify Before Acting

Fee benchmarks, union reading/workshop parameters, and public-art program rules move; this skill's figures were verified as of September 2026. Before signing or advising: check the Dramatists Guild's current model agreements and compensation guidance (dramatistsguild.com) for commission terms and royalty norms; confirm reading/workshop tiers against current Actors' Equity guidance (actorsequity.org) and route the engagement details to nonprofit-arts-union-agreements-visas; confirm Edgerton New Play Award status through TCG (tcg.org); check composer fee comparators at New Music USA (newmusicusa.org, including its Commissioning Fees Calculator) and the Canadian League of Composers (composition.org); and read the actual local percent-for-art ordinance and program guidelines before quoting percentages or stipend norms. For any agreement that departs from the DG model or carries unusual rights asks, have entertainment counsel review before signature.