Last Updated on October 6, 2020
Artists and lawyers don’t have a ton of opportunities to work together, but when it comes to taking your art business to the next level, you’re going to want a lawyer in tow. Once you’re working as a successful artist, and your name is becoming more and more prolific, there are going to be plenty of roadblocks – and the potential for pitfalls – along the way. From not understanding the explicit terms of a contract to failing to register your copyright or trademark and losing thousands of dollars in the process, or even defending against claims or potential lawsuits involving your work, there are plenty of reasons why an artist would want to hire a lawyer. Here are four of them.
Lawyers can help you register your copyrights
From the moment you create work, you want to make sure that it’s protected from infringement. Say, for example, you just took a photograph of a Patagonian sunset, and after editing it you posted the photo on your website. Within minutes, your image is being distributed by a ski apparel company, without crediting or compensating you. You’re wondering what you can do to stop them – and a lawyer can help, along with developing a strategy to keep this from happening again in the future.
Understanding when to file your copyrights is a critical aspect of the process, because of the U.S. Copyright Office. The Office defines publication as:
“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.”
But in the age of the internet, can you consider a work “published” if it’s posted to the internet? The answer to that question is tricky. On the one hand, some might argue that posting an image to the internet and then encouraging or allowing users to make copies and distribute the image – whether electronically on the internet or by purchasing prints of the image – then the image is published. However, if you post the image without giving users the explicit option to re-post, purchase, or distribute, then an image isn’t considered published. Though that may seem contradictory to your end game, which is to stop your photo from being disseminated without your permission, those steps are necessary to be able to protect your work with copyright.
Another consideration when determining when to register your copyrights is how often you’ll be submitting your work for registration. Will you register multiple works at once or take a one-by-one approach? Which is more cost-effective? What about time effective? When you work with a lawyer, he takes care of the strategy for you – leaving you with extra time and money to work on what you do best. Make art.
Lawyers negotiate artist’s contract terms
Contracts are one of those tricky instruments that most artists think they can pull off themselves, and in a sense they’re right. With plenty of templates and resources out there, including the ever-popular Legal Zoom, getting a contract written up and signed should be easy, right? Well, sort of – if you’re not terribly concerned about exactly what it is you’re signing away. You see, contracts can be written and executed by anyone, the terms of which then become binding. But the reason you hire a lawyer to write and execute your contract is that you want to make sure you’ve got a clause that addresses how to handle absolutely any kind of situation that could arise based on your contract.
For example, it’s important to define which laws govern your agreement. Is there a statute that protects or limits certain remedies under the contract? Where will you argue the case if a dispute arises? Does the contract provide for a specific court? Or will both parties go to arbitration? What kinds of rights do you have, as an artist, under the contract? Do you own the exclusive rights to the copyright in this work, or could this work be considered a work-for-hire employment agreement? What happens if the terms of the contract aren’t met?
While you think it’s worth saving yourself the money of having your contracts reviewed by an attorney, it’s important to realize that as an artist, you may wind up spending considerably more recovering what you’re owed under a bad contract. By working with an attorney, you can create a standard contract that you use with all of your clients, that way it’s essentially a one-time fee for a lifetime of legal protection when dealing with new clients. Similarly, if a client is presenting his own contract to you, it’s better to have a lawyer look it over and understand what rights you’re giving away under the contract than to sign it at first glance.
To help artists fend off any DMCA claims
As an artist, there are two different instances in which you can run into issues with the Digital Millennium Copyright Act (DMCA), otherwise known as the DMCA: Either you are posting content without permission, or someone is posting your content without yours. Either way, you’re going to want a lawyer’s advice before you take on the issue yourself. Why? Because the DMCA is a highly discussed, not-so-easily understood principle in law with many, many defenses, and often times big companies go after little guys because they know they’re easily scared.
For example, let’s say you saw a photo on the internet that you were confident was sufficiently ironic to make an awesome meme on its subject. You downloaded the photo from Google Images, carefully crafted it with your own spin, and then shared the image on your blog or Instagram. Within a week, Getty Images was sending you take down notices, advising that you now owe them $3,000 for your use of the image. Rather than panic, you might want to speak to an attorney – who would help you craft a response letter to Getty and let them know you wouldn’t be giving them a dime. Your use of their image constitutes fair use since you’re using the image as a parody on the original.
Or maybe you’ve just found out that a Facebook user has posted your latest YouTube video on their page, where it’s getting millions of hits and robbing you of potential dollars for views under the agreement you have with YouTube. You’ve sent a takedown notice to Facebook, but you can’t make up the lost money. Plus, the Facebook user has submitted a counter to Facebook, alleging that he had the right to post the content, even though he didn’t. Under DMCA, Facebook doesn’t have to police this situation, and they won’t: If you want to get your money back, you’re going to have to take this to court. And while the burden of going to court may seem prohibitive, a lawyer can make the task worth your while, since it’s likely that you could recover more than what you’re owed in lost profits.
Lawyers actually save artists money
Lawyers often get a bad rep for being expensive, but expertise does come with a price. As an artist, you wouldn’t want someone to offer you less than your creative product is worth. And lawyers, though somewhat costly, can you help you avoid those situations. They can also ensure that you’re setting up your business model and contracts in precisely the way you need to in order to avoid unnecessary future costs that you weren’t expecting – such as having to litigate over a bad clause in a contract. If you’re an artist experiencing growth in your career, now might be a good time to call a lawyer.
Are you an artist? Were you ever stuck in a situation in which you wish you had a lawyer? Let us know in the comments below!
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.