Drawing up contracts

Once an artist/organization has been selected, it is important that they are properly contracted to carry out their work. The majority of healthcare organizations or charities will have their own template contracts to be used for any projects delivered in partnership with them. However, contracts still need to be tailored to fit the needs of the programme. For example, a contract for a musician coming to give a one-off performance in a public space in a hospital may be short and relatively simple, whereas a contract for an artist-in-residence to work with children in hospital over a 6-month period will be more complex because of the longer timeframe, more formal role, access to sensitive areas of a hospital, and involvement with young people. Either way, there are several essential components of a contract:

  • 1. The artist’s brief—this may be taken directly from the original tender notice or rewritten following the selection process and discussion with the chosen artist/organization. This will outline what is expected of the artist in their time working on the project
  • 2. The agreed fee and payment stages, including what the fee is expected to cover, and whether there will be additional payments for other aspects of work or the opportunity to renegotiate at a point in the future
  • 3. The dates and length of the programme, to confirm that both parties can commit for the duration
  • 4. Any specific information or arrangements, such as access to equipment, points of contact for the artist during the project, reporting requirements
  • 5. Responsibilities—it is important to ascertain who bears responsibilities for certain aspects of the project, in particular the costs incurred from the project, any insurance or liability, the reporting of any incidents or causes for concern that arise across the course of the project and applications for any licences or permits that may be required to carry out the project. More details on reporting incidents and causes for concern are given in Chapter 8
  • 6. A cancellation or termination clause, giving a notice period for both parties and outlining the arrangements

If there are specific codes of ethics, guidelines, or expectations for working on the project, or health and safety regulations, these should be attached to the contract, to ensure that they are acceptable to both parties prior to the project commencing.

If a project involves tangible artwork, a new composition, the development of technology, or potentially commercializable outputs, a contract also must outline with whom copyright, intellectual property, patents, and licences will lie. For a new project, issues around who will ‘own’ the project idea also should be discussed. For example, if an artist is involved in developing the concept of a project, can that artist subsequently deliver the project in another setting? Or can the health organization hire another artist in the future to deliver the same project? Normally organizations will have their own regulations for such situations, but where multiple partners are involved in a project, this must be carefully negotiated up front before any project activity starts. Contacting organizations or individuals who have led similar projects in the past can be a helpful way of ascertaining any precedents.

Websites such as www.artistsnetwork.com and www.graphicartistsguild.org give advice to artists on contracts for projects. Legal advice may be required if substantial changes are made to an organization’s standard contract, which should be carefully considered as this may affect project budgets.

If the project is short term, sometimes a memorandum of understanding (MOU) is drawn up rather than a full contract. An MOU may be very similar in language and content to a contract. However, unlike a contract it is not legally binding. Whereas a contract creates an obligation and an enforceable agreement, with potential penalties if it is breached, an MOU does not contain legally enforceable promises. This can make it a more suitable option if, for example, an organization is providing support in kind, helping to outline what that support is to ensure that both parties understand what has been proposed and agreed, but not containing any formal legal terms.

A template memorandum of understanding is available through the Australian Department of Education and Early Childhood Development website www.educa- tion.vic.gov.au.

 
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