Drafting a commission contract with a business: the essential clauses

01Why a written contract is non-negotiable

In the United States, oral contracts can be legally binding, but they are nearly impossible to enforce. When disagreement arises — and it always does, sooner or later — it becomes one party's word against another's. Daniel Buren has been involved in several disputes over public commissions where the absence of precise clauses generated years of litigation. Under the Statute of Frauds, most US states require contracts for the sale of goods over $500 to be in writing under the Uniform Commercial Code, which means your commission contract should be written as a matter of both law and common sense.

In the United Kingdom, while oral contracts are recognised, the courts strongly favour documentary evidence. English contract law requires offer, acceptance, consideration and intention to create legal relations, all of which are vastly easier to demonstrate with a written agreement.

A written contract is not a sign of distrust toward your client. It is a professional tool that clarifies expectations on both sides and prevents misunderstandings. Companies that regularly work with artists understand this perfectly. Those that resist the idea of a written contract are sending you a warning signal you should not ignore.

02A precise description of the commissioned work

The first essential clause is the description of the commission. It must be precise enough that both parties know exactly what is expected, yet open enough to leave you the artistic freedom you need. A good balance defines the technical parameters (dimensions, medium, support, intended location) while leaving artistic content to your discretion.

Xavier Veilhan, who regularly executes commissions for institutions and corporations, works with briefs that define the technical and spatial constraints without prescribing aesthetic content. This separation between objective parameters and creative freedom is the key to a balanced contract.

Include an approval clause for preliminary sketches or maquettes. You present one or more preliminary proposals, the client approves the chosen direction, and you execute the final work on that basis. This stage prevents the nightmare scenario where you deliver a finished piece and the client says they imagined something different. Sketch approval commits the client to the artistic direction.

03Timeline and delivery conditions

The contract should specify a realistic timeline: start date of creation, date for sketch presentation, date for final delivery. This schedule must include sufficient margins for the uncertainties inherent in artistic creation. A delay of a few weeks on a multi-month commission is normal. A delay of six months is not.

Delivery conditions deserve particular attention. Who transports the work? Who insures the transport? Who is liable for damage in transit? Who handles installation? Anish Kapoor, whose monumental works require significant logistics, systematically includes detailed transport, insurance and installation clauses in his commission contracts.

For an independent artist, the delivery question is often underestimated. If you deliver a two-metre canvas in an unsuitable vehicle and it arrives damaged, the question of liability arises. The contract must specify who bears the risk and who pays for insurance.

04Payment: amount, schedule and expenses

The payment clause is obviously central. The total amount should be stated clearly. In the US, specify whether sales tax applies (it varies by state; original artwork is exempt in some states like New York but taxable in others). In the UK, consider VAT implications, particularly if you are registered or use the Artists' Resale Right. Materials, transport and installation costs should be treated separately or included in the total price, but this distinction must be explicit.

The payment schedule is crucial. An artist should never begin a commission without receiving a deposit. Standard practice is one third at contract signing, one third upon sketch approval, one third upon delivery. Some artists negotiate a fifty percent deposit at signing, which is reasonable for a commission that involves months of work and significant material costs.

JR, who executes monumental commissions for cities and institutions, structures his contracts with payment schedules that correspond to production phases. This method protects the artist (no excessive cash advance) and reassures the client (they do not pay in full before seeing the result).

In the US, if the client is a corporation, payment terms are governed by the contract itself since there is no federal equivalent of the EU Late Payment Directive. However, you can and should include a late payment penalty clause (typically 1.5 percent per month) and specify that the artist retains a security interest in the work until full payment is received under UCC Article 9. In the UK, the Late Payment of Commercial Debts Act 1998 gives you a statutory right to charge interest on overdue invoices.

05Intellectual property rights: the most important clause

Selling a work does not mean transferring your copyright. In the United States, copyright and ownership of the physical object are separate under 17 USC 202. The company that buys your painting has the right to hang it in its offices. It does not have the right to reproduce it on brochures, websites, holiday cards or merchandise without your permission. For copyright to transfer, there must be a written assignment signed by you, the author.

In the UK, the position is similar under the CDPA 1988: copyright remains with the creator unless expressly assigned in writing. One important exception: if the work is created by an employee in the course of employment, copyright belongs to the employer. But as a commissioned independent artist, you are not an employee, and the copyright is yours.

The commission contract must specify exactly which rights you grant and which you retain. Any licence or assignment of rights must be detailed: which rights (reproduction, display, adaptation), for which uses (internal communication, advertising, merchandise), in which territory (US only, worldwide), for what duration (five years, ten years, perpetuity).

Invader, whose pixelated mosaics are installed in public spaces, systematically retains his reproduction rights. He sells the physical work but the reproduction rights remain his property, allowing him to control image distribution and generate additional revenue.

A total and permanent assignment of all rights must be priced accordingly. If the client wants to use your work in its communications for ten years, that usage has value that should be added to the commission price. Do not give away your rights for free. Every right transferred has a price.

06Termination clause and penalties

What happens if the client cancels the commission midway? Without a termination clause, you are left with an unfinished work, committed materials and no compensation. The contract must provide for early termination conditions and corresponding indemnities.

A balanced clause provides that if the client terminates before sketch approval, they forfeit the deposit paid. If they terminate after sketch approval, they must pay the amount corresponding to work completed plus a flat indemnity. If you terminate (illness, technical impossibility), you refund the deposit minus expenses already incurred. In US law, these are known as liquidated damages clauses and are enforceable as long as they represent a reasonable estimate of anticipated loss.

07Moral rights and attribution

In the United States, the Visual Artists Rights Act (VARA) provides limited moral rights for works of visual art: the right of attribution and the right of integrity (preventing intentional distortion, mutilation or destruction). VARA applies only to paintings, drawings, prints, sculptures and exhibition photographs in single copies or limited editions of 200 or fewer. It does not cover works made for hire, so ensure your contract clearly states you are an independent contractor, not an employee.

In the UK, moral rights under the CDPA 1988 include the right of paternity (attribution) and the right of integrity. Unlike French law where moral rights cannot be waived, UK moral rights must be asserted in writing, so include an assertion of moral rights clause in your contract. In the EU more broadly, moral rights are generally inalienable.

Christo and Jeanne-Claude always insisted on the integrity of their installations, even temporary ones. Regardless of jurisdiction, explicitly stating moral rights in the contract reminds the client that they cannot modify, crop or mutilate your work.

08Getting started

A commission contract does not need to be thirty pages. Two to four pages are enough to cover the essential points: work description, timeline, payment, intellectual property rights, delivery, termination. In the US, Volunteer Lawyers for the Arts (VLA) provides free or low-cost contract templates and legal consultations for artists. In the UK, the Artists' Information Company (a-n) and Own Art provide guidance and template contracts. The College Art Association also publishes model agreements.

If the commission represents a significant amount, invest in a review by an attorney specialising in art law or intellectual property. The cost of this consultation is negligible compared to the risk of signing an unbalanced contract. Artedusa supports independent artists in their professionalisation, and mastering the commission contract is one of the skills that separates the amateur artist from the professional.