Commissioning Agreement Template for the United States
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What is a Commissioning Agreement?
Commissioning Agreements are standard across United States media, advertising, publishing and design. The point that surprises commissioners is that paying for a work does not transfer copyright. Under section 201(a) of the Copyright Act ownership vests in the author. The work made for hire doctrine only applies to employees acting within the scope of employment, or to specially ordered works falling within nine enumerated categories with a signed written agreement. A logo, an app or most photographs fall outside those categories.
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Frequently Asked Questions
Does paying for a work transfer the copyright?
No. Under section 201(a) copyright vests in the author. Ownership passes only through a valid work made for hire arrangement or a written assignment signed by the owner, so payment alone leaves the creator owning what you commissioned.
When does work made for hire actually apply?
To works by an employee within the scope of employment, or to specially ordered works falling within nine enumerated categories where both parties sign a written agreement. Many commissioned works, including most logos and software, are outside those categories.
Why include a backup assignment?
Because if the work made for hire classification fails, the assignment still transfers ownership. It costs nothing to include and it is the difference between owning the work and holding an implied license.
What is the thirty five year termination right?
Section 203 lets an author terminate a grant after thirty five years, and it cannot be waived by contract. It applies to assignments but not to true works made for hire, which is a further reason the classification matters.
What are moral rights in the United States?
Narrower than in many countries. The Visual Artists Rights Act gives attribution and integrity rights for certain works of visual art, and those rights can only be waived in a signed writing identifying the work and the uses.
About the Commissioning Agreement
A Commissioning Agreement records that one party is paying another to create a work and settles who owns the result. Under United States law the author owns the copyright unless the work qualifies as a work made for hire, and a transfer is invalid unless it is in writing and signed, so the agreement is what actually delivers what the commissioner is paying for.
When do you need this document?
You need one whenever you are paying for something to be created rather than buying something that exists: commissioning a film, series or podcast, engaging a composer, photographer or illustrator, briefing a design or branding project, or commissioning written content, research or software.
What does it cover?
The agreement sets the brief, the delivery schedule and the fee against milestones, then handles ownership through work made for hire language where the category permits it, always backed by an assignment so the transfer is effective either way. It deals with moral rights waiver and any license back to the creator for portfolio use. It requires warranties of originality and clearance of third party material and contributor appearances, and sets an approval process with a defined number of revisions and a deemed acceptance date.
Common pitfalls
The dominant failure is a work made for hire recital for a work that is not in one of the nine statutory categories. The recital is then ineffective, and without a backup assignment the creator still owns the copyright. The second is uncleared third party material such as music, stock footage or an unsigned contributor release, which surfaces at distribution when it is most expensive. The third is ignoring the section 203 termination right, which cannot be contracted away and which applies to assignments but not to genuine works made for hire.
GOVERNING LAW
Applicable law
This Commissioning Agreement is drafted to comply with United States law. Key legislation includes:
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