Whether you are a painter doing a commission, a photographer on an editorial shoot, or a freelance graphic designer, an artist contract will set out the details of the relationship with your client by going through the roles and responsibilities of both parties. Here are some of the keys to talking through and understanding what is and should be in an artist contract, and what to ask before signing.
Artist Contract Terms: Credit, Control and Compensation
The actual paperwork of an artist contract may come up in many ways and take several different formats. While there are obviously elements that should be covered- credit, control, and compensation (the 3 C’s) come to mind, each discipline’s way of doing business and industry standards differ slightly. So, educate yourself about the business of your industry. Talk to your peers to see what they do- whether that is asking about the commission split with a gallery for work sold or the number of rounds of revisions a graphic design client can ask for in the artist engagement contract before additional charges accrue. You may even find that the standard is that you, as the artist, are generally the one responsible for giving a written agreement to the person doing the hiring! (This is a good thing.)
Next, talk to the party you are working with/for and discuss the details of the engagement. If the contract is a year- long performance engagement or involves a union, there will likely be a Human Resources person or a union representative who may sit down with you and help you navigate the terms of the contract and your responsibilities. However, if it is a work made for hire, a one-time performance, or a smaller engagement, you will likely be dealing directly with the engaging party.
Having a discussion before you sign an artist engagement contract serves two purposes: first, it allows you to see what the roles and responsibilities are and whether both sides have thought through the logistics of the engagement. It gets any possible uncomfortable details out in the open at the beginning of the relationship, rather than trying to navigate a situation after a problem has arisen or there has been a mutual misunderstanding about which party is responsible for some cost or detail of the project. Second, it gives you a good idea about what it is like to work with the other side: if they are reluctant to get on a call or respond to your questions, well, that will probably continue during the course of the engagement, and knowing that earlier will allow you to adjust your expectations (or charge more money up front for the trouble!).
Discuss the details before you sign your artist contract:
- the amount of money you will get paid
- when you will receive that money (at once or in multiple increments)
- the timeframe of the contract
- who is covering materials and transportation
- what is the period of time for change requests on your deliverables.
Be sure to discuss anything that you can think of that relates to the project so that you can include those details within the artist engagement contract- how your time will be spent, procedures for working together and truly any question you may have about the working relationship is fair game.
What Should An Artist Contract Cover?
From a one-pager to a weighty 40-page tome, the artist contract takes different forms and levels of formality. Some industries have been working with the same artist engagement contract templates for many, many years (I am looking at you, publishing) and so these tend to be longer and more legalese-y. Others are more contemporary, shorter, and written in plain English (or any other language). There is no form that an artist engagement contract must take to be the real deal. However, there are portions and phrases that come up time and again simply because that is the language that, should there be a problem, lawyers and courts understand and interpret quickly to sort out the issue; we will discuss some of these below but first, let’s take the most essential elements of any artist contract: credit, control, and compensation- the 3 c’s.
Credit provisions within an artist contract are obvious for something like participation in a film: Where does my name appear? How large is the font? Do I share my writing credit with someone else? In a performance situation, questions like these might arise: How do I want my name to appear? Do I get a bio in the program? Are there official pictures/ headshots taken and do I get approval rights over the shot selected, or am I responsible for providing my own?
Credit is just as important for other deals, though. In a work made for hire situation for a graphic designer, for example, the creator’s name and information will generally not be associated with any part of the outcome (think the Nike logo). So, the artist engagement contract will need to discuss how you, as the creator, can share that work and associate it with your name: Perhaps as part of an online portfolio, or in a password protected version of the portfolio? It must be determined whether you can state the name of the company in your portfolio, or whether you’re precluded from doing so under the terms of your artist contract until after the design has been launched as the official logo for that brand/ company or person.
Another question for credit will tie into the artist’s control over the outcome: if I don’t have control over the final product or how it is used, what if I want my name and affiliation removed from the project? Can I do that? No one wants a relationship to turn sour or to be unhappy with the outcome, but if the creator lacks control over the creation, removing the affiliation can be an option, if it gets discussed and written into the artist engagement contract. Next, if the artist invokes the provision severing affiliation, what are the logistics of that removal? Immediate removal from online references and removal from any print materials on the next round of distribution might be a reasonable way that both parties can comply within the terms of the artist contract.
The question of control of the work created is another vital one within the artist engagement contract. Do I retain the rights to my artistic product, or do I need to assign some or all of those rights for this relationship? For example, people who work on a film assign their rights in order for there to be a clear chain of title for a film to be distributed; authors assign their rights to publishers for the same reason. In those examples of assigning rights, strong credit provisions within the artist contract are in place to allow for recognition of the work. Visual artists, however, do not assign their underlying rights in the work, even if the artist is not in physical possession of the pieces, either through a sale or consignment to a gallery.
Control may also include the rights to your personal image, voice, or biographical information used in the promotion of your work or the project. As an artist, you want to submit a bio that you have written, be notified of changes to any bio or artist statement, and also control what images of you are used in promotions. The artist engagement contract may contain a release and assignment provision, allowing you to be recorded or photographed at any event associated with the artist engagement and for the other party to use those images in its own materials and promotions long after the engagement has ended. Generally, this is understandable and okay, but consider the scope of those uses and what is practical. You may ask that you have approval rights over promotional materials directly related to the artist contract, such as press releases and website notices and ad banners. You may also require that candid photos taken while conducting a workshop do not need approval to appear in the organization’s newsletter or website, for example.
Further, any artist engagement contract should talk about control within the engagement: does that artist have final approval if changes are made or over the manner in which the work is represented, including approvals over images chosen for publicity materials? Will the artist be brought in to make the changes the other party desires or will someone else be hired? How quickly will I be informed of a sale of my work, and will I then have access to the purchaser’s information so that I may add the person to my own mailing list? Does the contract permit assignment for either party, meaning can I have someone else do the work (or a smaller subset of that, hire subcontractors for specific elements of creation) or can the other party transfer their rights and responsibilities under the agreement?
Again, something like film rights are assignable within an artist contract, but performance services are generally not. The element of control may even arise from the outset of discussions between the parties in the form of a nondisclosure agreement, meaning that both parties swear not to discuss the plans, presentations or material of the other party. That way, if the parties decide not to work together, after all, the information remains confidential and one party cannot use the other party’s confidential information to its own advantage and the rights remain with the original creator.
Without question, you want to know when you are getting paid, how much you are getting paid, and how frequently you are getting paid under your artist engagement contract. Is the compensation strictly monetary, or are there other elements in the compensation package? Travel expenses, shipping expenses, insurance coverage, retirement contributions are all examples that might arise within an artist contract. Additionally, you want to know the payment arrangement: for a short term contract, do you get paid 50% at signing and 50% at completion or all at once, or more intervals? For a long-term engagement, is payday once a month? Twice a month? Weekly? The frequency of payment is important to your personal finance budget. Also, the conversation should also include the mechanism for expense reimbursements: When do you need to submit any receipts and forms in order for expenses to be reimbursed? Does this artist engagement contract ever transfer any of my expenses to the other party- materials fees, framing, costumes? Are any of those things provided by the other party? If expenses are not shared or covered, make sure that the compensation amount will sufficiently cover all of the elements of your engagement without leaving you strapped for cash.
Another critical component of the artist engagement contract is the term, or length, of the artist contract agreement. In other words, how long does this engagement last? It may be a set period of time; it may be an approximate timeline with key dates and some defined additional time as an overage in the event of a delay. An artist engagement contract for a dancer may have a very clear term of one year, for example, but what is the mechanism for renewal of the term? Is it automatic unless the dancer is informed? Is it negotiated 60 days prior to the expiration of the initial one year term? 90 days?
For other projects, the parties may have a target date or a deadline, such as an exhibition opening, but some leeway within that time period. If I am a designer and I turn in a deliverable, how long does the other side have to request changes? After that period expires, can the designer presume approval and move on to the next phase of the project? Setting term elements within the artist engagement contract allows both parties to be clear on their responsibilities as they relate to time and manage expectations.
Another component of the agreement that has a term element is termination. How much notice do I have to give if I am going to be late on a deliverable within an artist contract? What if the other party is not complying with the agreement? How do I let them know, and how much time does the other party have to fix that breach? How much time after a failure to correct that breach can I terminate the artist engagement contract? Do both parties have the right to terminate and what reasons (or no reason) can trigger termination? Are there consequences for terminating the artist engagement contract sooner than anticipated? Understanding the level of stability in an artist engagement contract and the constraints of walking away is a key in assessing whether to accept the terms.
Representations and Warranties Within an Artist Contract
Representations and warranties are statements that voice the assumptions both parties make in order to start discussions about working together: both parties are adults and want to work together; the work that I will give you will be my own; you will be able to pay me for the work I do. From a legal perspective, these statements are written out in order to let the other party off the hook in case of a problem with the agreement or an outside lawsuit. Some representations and warranties that might be presented to the artist look like this:
- I am 18 years or older and legally permitted to enter into contracts;
- I have no other agreements or exclusivity contracts that conflict with or prevent me from carrying out my responsibilities under this agreement;
- All of the work presented is my original creation. In the event that the creations are not my own, I attest that I have properly obtained permissions and all necessary licenses for the use of those elements, components, or items.
Sometimes, the contracting party represents and warrants things such as:
- I am fiscally solvent and not currently involved in or aware of any dispute which would compromise my ability to perform the terms of the agreement (meaning, we swear we can pay you).
These guarantees put in writing the underlying expectations to the artist engagement contract, the foundation of two parties’ ability to enter into a contract at all. Sometimes they are itemized and take up a good amount of space; other times, they are a quick recitation; and still other times, they remain presumptions that don’t make it the agreement at all.
There are a few additional elements that show up in artist engagement contracts, usually lumped together at the end, possibly in a single paragraph and so are often overlooked. You should know what they are and look for them. Sometimes the assignment provisions mentioned under control are found here. Something called a severability clause, meaning that if one provision of a contract is found invalid, it does not make the whole contract invalid, but removes the invalid provision and the rest of the contract remains as if the invalid provision was never there. Often there is a statement that this agreement in no way creates a joint venture or merging of entities of the parties. And finally, there is a choice of law clause, stating where any dispute must be brought. Look at the choice of law and make sure that it is either where you are or where the work of the agreement is taking place. If something goes wrong, you do not want to have to fight about it in Montana if you are located in Chicago; it virtually assures that it will not be worth the time and money it would take to bring a dispute and puts you at a major disadvantage.
Ask Before You Sign
Much like asking questions and having conversations prior to receiving a contract, once you actually have an engagement letter or artist engagement contract of some kind, read it. Then have someone else read it. Make sure that you understand what the artist engagement contract says and, more importantly, that it says the same things that you thought you agreed to in the conversations you had. Write some notes on the questions you have, and then have another conversation and ask those questions. Make sure you get the answers you need and that the contract is amended to reflect those changes.
Many people think that the signing of the contract is just a quick moment because all the work has been done while negotiating the terms. However, all too frequently, deals fall apart in an artist engagement contract because one party interprets a conversation differently than the other party does and, as mentioned above, the party writing the agreements puts interpretation that is most favorable to him/herself or the company. Sometimes, this is intentional; sometimes, it is a just a mistake or typo or a change that didn’t get made before the artist engagement contract was sent. But, once a contract is signed, the terms in the contract are the agreement, no matter what other conversations came before it. In other words, any leverage you have to make changes or negotiate or ask about the interpretation of a provision goes out the window when your signature hits the paper. So, ask if something in the artist engagement contract does not look like what you thought. Have multiple people look at the agreement and see if they come up with questions or catch something that you may have missed.
Agreements may come in many formats but understanding the elements that should be covered within your artist engagement contract arms you with the confidence to negotiate and the ability to properly assess the critical components of a proposed working relationship. Talk to people, ask questions, read critically, and assert your needs in order to have the best chance at a positive experience.
What’s your experience with artist contracts? Have you had good ones and ones that you regret signing? What have you learned that you can share?
For the past seventeen years, Kelly Trager has dedicated her life to the arts as a dance artist, arts attorney, professor of arts and cultural and design management, and advisor. She currently teaches at Pratt Institute in NYC and Southern Methodist University in Dallas, and runs a solo arts law practice, KKTLaw.