Unfortunately, far too many artists and creatives tend not to ask for, create, or review contracts than those who do. Whether for an art exhibition, fee-for-service, commission, gallery, or sale, contracts lay out the rules of the transaction between a buyer and seller so both parties know what is expected and what the consequences are for not meeting those expectations.
Let’s make one thing clear: VERBAL AGREEMENTS MAKE POOR CONTRACTS. Breach of contract lawsuits only occur when both parties have different interpretations of the contract’s terms. Verbal agreements are prone to misunderstanding as are poorly written contract, partly, because there is too much ambiguity and undefined terms. But there doesn’t have to be if you learn the basics of what should be in an artist contract.
It’s Good to Be Paranoid with Artist Contracts
When entering into an artist contract, ask yourself; What if the project falls through? What if the venue becomes unavailable? What does work for hire mean? Do both parties have the same understanding of the terms of your compensation schedule? Is the contract fair to both parties or is it heavily weighted to protect the client? Play devil’s advocate to identify holes that may be left in the contracts that a party can jump through to escape their obligations. Make sure that all the essential elements are clear, so your client knows exactly what is expected of you and of them. If they ask for more of your time or want to scale up the project, you can easily point to your contract to show them the limits of your work.
The only way that an artist contract can be breached is if you don’t fulfill the obligations as listed.The more precise you can make your contract terms, the less likely there will be any disagreement. In most cases, your service is going to be similar from client to client, so your contract will also be similar. We strongly suggest talking with an attorney to develop a core contract with terms that can be tailored to specific jobs. While it may cost several hundred dollars or more to develop your contract template, you will probably only have to do it once, assuming that your service is similar for each client. That way you can be sure it is as tight as possible. Think of it as insurance against a frivolous lawsuit.
Work Made for Hire Contracts
You may be hired by an individual or company who have their own standard contracts. Unfortunately, it may be difficult for a non-lawyer to fully evaluate their contract terms. Depending upon the value of the job, you might consider getting a contract review from an attorney.
If you feel it’s in your best interest to modify the contract, mark up the contract in “review” mode and suggest alternative terms or adjust clauses with ones that you are comfortable with. Clients can be accommodating if your concern is valid. If they’re not accommodating, ask yourself, is this still a client you want to do business with?
If a contract review is not feasible, you should read the contract carefully in its entirety and ask for an explanation of each term that concerns you. Send the client an email laying out your understanding of those terms, so at least there is a written record of exactly what you think everything means that has been given to the other party, should you need to refer to it later on.
One thing you should watch out for is Work Made for Hire clauses. An Independent Contractor (i.e. a freelance graphic designer / company) hired to do perform a creative service will usually retain the copyright of the work. The client receives only a license to use the work for a particular purpose. Uses outside of that purpose should require additional licensing fees. For example, if you create a graphic design that is used in an advertising campaign, the company generally has the right to continue to use that image for their marketing efforts. However, they cannot sell that graphic to another company. Any use by the company that purchased the design would require an additional license.
However, in a Work Made for Hire agreement, the client receives the copyright in the work, and therefore, full ownership.
A work for hire agreement exists when:
- A written agreement is signed by both parties;
- Stating that the work is a “work made for hire”
Without that specific language, it is not a Work Made for Hire agreement and you will retain your copyright, despite what the client thinks. You may want to add a line to your or any contract that states specifically, “This agreement is not a Work Made for Hire” so you know that you and the client agree on this fact.
What is Breach of Contract?
For a contract to be valid and to prevail in the event a breach of contract action is necessary, the following elements must be proven (these may be slightly different in each state):
- Offer, acceptance, and mutual agreement: Every contract must include a specific offer by one party with the other side accepting the terms of the offer. Both parties must agree on the terms of their own free will. If one party forces or coerces the other into agreeing, then the contract can be invalidated.
- Consideration: Something of value must be exchanged between the parties, such as money or services. If both parties don’t exchange something of value, it is a considered a gift, not a contract.
- Mental competence: Both parties must be of “sound mind.” Mentally ill or intoxicated parties will invalidate the contract. Contracts with minors cannot be enforced, although what constitutes a minor for contract purposes may vary by state.
- Legal purpose: The contract must be for a legal purpose. A contract to sell drugs, commit a robbery or another illegal act is not enforceable.
- Lack of performance by the defendant: The plaintiff must show that the defendant did not fulfill the terms of the contract. When creating the contract, make sure the terms are specific and understood by both parties. If the terms are vague or ambiguous, then the contract will be difficult to enforce.
- Performance by the Plaintiff: The plaintiff must also show that they have fulfilled the terms or would have fulfilled those terms if not for the defendant’s lack of performance.
- Timely notification of a breach: The plaintiff must have notified the defendant of the breach including a defined time with which the defendant can satisfy the terms before a breach of contract action will be initiated. The notification should be in writing and sent using return receipt or some other proof that the notification was delivered verbal notification is acceptable but harder to prove.
For the defendant to prevail, they would need to find a way to cast doubt on the plaintiffs argument as to these elements. So, if the defendants can show the contract was indefinite, vague or find some other element lacking, they can win.
Should I Hire a Lawyer to Review My Artist Contract?
When possible, always have a lawyer review a contract written by the other party, since the contract will likely have been written to favor the client, not you. You can also find the local Volunteer Lawyers for the Arts chapter in your city or state. VLA’s across the country offer legal workshops, pro-bono consultations, and reduced fees. With practice and actually reading what you’re signing, you’ll be prepared to know what future contracts should entail to protect you, your business, and your work.
Additional protections are available if you incorporate your creative business. You can learn more about by reading Should I Open a Corporation for My Art Business? Hungry for more legal knowledge? Learn all about artist contracts, copyright and art law at Art Law Journal.
What have you learned about artist contracts? Do you use them? What have been the advantages? Tell us in the comments!
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.