Last Updated on August 22, 2022
Unfortunately, far too many artists and creatives tend not to ask for, create, or review arts contracts. 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 occurs when both parties have different interpretations of the contract’s terms. Verbal agreements are prone to misunderstanding, as are poorly written contracts, partly because there is too much ambiguity and undefined terms. But there doesn’t have to be!
When entering into an artist contract, ask yourself; What if the project falls through? What if the venue becomes unavailable? 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.
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. There is no form that an artist contract must take to be the real deal. However, there are portions and phrases that come up time and again. Let’s take a look at the most essential elements.
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, and 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 at 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.
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 the 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 includes 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 key in assessing whether to accept the terms.
Representations and Warranties
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 of the artist 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 to 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.
Work Made for Hire Contracts
One thing you should watch out for are Work Made for Hire clauses. An Independent Contractor (i.e., a freelance graphic designer/company) hired to 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 its 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. You may be willing to give away your copyright in the work but if that is the case, consider asking for more money for your work.
A work made for hire agreement only exists when there is clear language stating that the work is “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 the contract that states specifically, “This agreement is not a Work Made for Hire and that you retain the copyright so that there is no misunderstanding.
Should I Hire a Lawyer to Review My Artist Contract?
We strongly suggest talking with an attorney to develop your core arts contract with terms that can be tailored to specific jobs or gigs. While it may cost several hundred dollars or more to develop your contract template, you will probably only have to do it once. The lawyer will help make sure the contract is as tight as possible. If the contract is written by the other party, have a lawyer review it since the contract will likely be written to favor them, not you. If you have trouble finding a lawyer, try your local chapter of Volunteer Lawyers for the Arts (VLA). VLA’s across the country offer legal workshops, pro-bono consultations, and reduced fees.
A well-written artist contract will help to minimize any issues between you and your client or employer. If legal action is necessary, it is the contract that will determine whether any of the terms were unfulfilled. A poorly written or vague contract, especially one not guided by an attorney, may be useless should you have problems. Also, the more you know about what should be included in an artist contract, the more confident that any contract you sign is a good one and that you and your business are protected.
What have been your experiences with an artist contract? 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.