Arts workers must have experience in drawing up contracts and understand that the meaning of a contract lies in the mutual trust and legal liability that binds both parties. There are all sorts of arts contracts, with the invitation to create/perform being among the most common. What are the fine prints to look out for when formulating and signing these contracts? Before answering this question, we should first be clear about the types of arts contract involved.

Various Types of Arts Contract

Generally speaking, there are four types of arts contract:

1. Contracts made with local arts organisations promoters;
2. Contracts made with overseas arts organisations promoters (they are generally invitations to undertake performances / artistic creations / interchanges overseas);
3. Contracts made with venue providers; and
4. Contracts made with arts practitioners such as choreographers, designers, actors and composers, who may, or may not, be the organisation's own employees.

What You Should Know When Formulating Arts Contracts

If you are a creator, performer or arts administrator, the arts contract you encounter most frequently are commissioned creation/performance. However, this type of contract is also the most disputable one. Even the best-laid plans may go wrong. Disputes are more likely to occur if the terms of the contract are not thoughtfully formulated and clearly stated. The following are considerations and fine prints you must not overlook when formulating contracts.

1. Role: State the purpose and aim of this invitation and the roles either side undertakes;
2. Responsibility: List out the roles and responsibilities of the parties involved. Example: If it is a commissioned choreographic work, state the content, form and length required.
3. Scope: List out when and where the performance will take place. To play safe, the commissioning party should state that it reserves the right for venue change and the commissioned work can be appropriately modified for other venues. Example: This should be clearly stated when commissioning sets design, or the sets will become useless if the venue has to be changed.
4. Terms and Conditions: Depends on mutual need and requests, and to safeguard mutual interests and unexpected eventualities. Example: If a dance troupe is invited to perform overseas, state clearly the board and lodgings, transport and expense to which members are entitled. For instance, is the host liable to pay all the expense involved? What is the flight and hotel class? How much is the rest time allowed (to ensure dancers are on their top condition)? All these details have to be spelled out.
5. Special Clauses: Does this collaboration require a special clause to safeguard unique circumstances? Example: If the invited overseas performer is the key performer of the show, state clearly the contingency plan and the responsibility he/she is subjected to should he/she be refused entry.
6. Patent Rights: For commissioned creations, state clearly whether there are patent fees involved, and if so, the means of collection. Example: It is the common practice that new choreographic works can be re-staged, without limit, for free within three years. However, as a safeguard for the future, state such details in the contract.
7. Programmes and Brochures: To avoid future disputes, state clearly whether the invited creator/performer's name and resume will or will not appear on the show's programme or brochure; and the coverage and content involved.
8. Promotion and Publicity: State clearly whether the commissioned party is allowed to make unilateral promotions.
9. Responsibility: To avoid any future disputes, specify clearly in the contract the sole responsibilities of either side in the collaboration. Example: To safeguard plagiarism, state clearly that the commissioned work must be an original creation or it is the creator's sole responsibility. Also, state clearly the performers' responsibility when failing to turn up.
10. Amendment: State clearly that either side cannot make unilateral changes to the production content without prior agreement.
11. Contract Termination: To avoid trouble in the future, state clearly that mutual obligation ceases with mutual termination of the contract.
12. Uses and Purposes: To safeguard your ownership and property rights, state in the contract that the creation involved cannot be used for purposes other than those listed.
13. Legality: To safeguard your interests, state clearly the legal basis of the contract. (Is it based under local law?)

Important Rules to Bear in Mind

1. The cardinal rule, no doubt, is having faith in contracts and agreements. Co-operation or collaborations are made possible only by those contracts that safeguard the rights of both parties to regard each other as vital partners of the project involved.
2. Play safe. Think out every possibility when drafting contracts. All too often, what you least expect might turn up.
3. The writing and wording of the contract must be clear and plain, and free of any ambiguity.
4. Disputes involving artistic judgments are usually beyond the reach of a contract. Should such situation arise, look for a precedent and seek an amicable solution or compromise.

The article was a transcription of a talk held by the ADC on 25 January 2000. The talk was given by Ms Helen Ng, CEO of Hong Kong Ballet. The topic was "Relation Between the Arts and Contract".