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When to See An Art Attorney
Artists who enter into significant or extended business relationships to either show, sell, commission or reproduce their art are likely to benefit from occasional meetings with art attorneys. The preferred way to meet is before you formalize contracts, agreements, sign dotted lines or even shake hands. The less preferred way, regardless of how rosy the prognosis, is to wait until after a relationship has begun, and the really less preferred way is to wait until it's too late and the relationship is deteriorating.
Before starting any business relationship, however, and before your first face-to-face meeting with an attorney, a good idea is to learn a bit about how the legal side of the art business works. Read a book or two, read Common Artist Legal Problems and How to Avoid Them
, ask other artists about legal problems they've either had or avoided, and attend workshops on legal issues for artists (see links below for California, New York and Chicago, IL attorney associations). Use these experiences to get an idea of what legal precautions you may have to take according to where you want to go with your art career and what you want to do with your art. Keep in mind that books, articles and conversations with other artists are not meant to substitute for actually meeting with attorneys or attending workshops on legal issues, but they certainly help you figure out what you'll want to learn once you get there.
The best time to see an attorney is when you have a contract, agreement or written conditions of an impending relationship in hand, but BEFORE you sign anything. At this point, you have no dispute, no obligation and nothing at stake. An advance meeting is recommended if you're just starting out, are inexperienced at negotiation, have little or no business experience or do not understand specific clauses or language in a contract or arrangement. An attorney can review your documents, point to areas of potential conflict, misunderstanding or overlooked topics, and in the process, help you avoid big problems later. Spotting potential trouble spots ahead of time is far less expensive, traumatic and time consuming than trying to repair damage after the fact.
As far as etiquette goes, best procedure is keep any contacts with an attorney to yourself, especially if a meeting is merely to make sure a contract is reasonable or an agreement is fair. Announcing the fact that you're consulting an attorney is not something a gallery, agent or representative generally wants to hear, and you certainly don't want to give the impression that you don't trust them or have litigious inclinations. So play it safe and keep it low-key unless a situation deteriorates to a point where you have no other choice.
Since various attorneys specialize in various aspects of the arts, you first need to determine which type of attorney you need. Contact a nonprofit lawyer referral service such as Volunteer Lawyers for the Arts
in New York City, Lawyers for the Creative Arts
in Chicago or California Lawyers for the Arts
with offices in Los Angeles, San Francisco and Sacramento (similar services operate in other parts of the country as well), describe your situation, and let them make recommendations. You can count on a referral service to give good solid advice. If, for example, they tell you that you don't need an attorney yet, then you probably don't need one. If you do need one, a typical half-hour meeting with a referred attorney is usually available for a nominal fee.
For starters, use nonprofit services rather than attorneys in the private sector unless you already know or are referred to a private one, are negotiating very substantial or complicated issues, or are an experienced artist well along in your career and in need of regular legal services. Attorneys affiliated with nonprofits tend to be more generous with their time and advice, less aggressive, and more affordable than their private sector counterparts.
Also consult an attorney if you aren't given a contract, but are instead asked by the other party to supply your own contract, that contracts or agreements are not necessary, or that a handshake and verbal understanding will suffice. The attorney will either advise or help you draft a contract or written agreement according to the specifics of your situation that you can then present to the other party. If you're a more experienced artist and you've negotiated similar situations before and have a standard agreement, then an attorney may not be necessary. But if any aspects of the arrangement (or lack of one) are unique, different, or new, then having an attorney review them with you is highly recommended.
No matter what type of business arrangement you need, DO NOT copy a standard agreement out of a book, workshop, or seminar, and use it for your contract. Template contracts are good for learning basic contract structure and wording as well as for understanding the major aspects of a relationship that need to be covered, but may be inappropriate for your specific situation or may completely leave out important details that are unique to your impending relationship. Only use form contracts when you really know what you're doing, you've done it before, know how to adjust the wording accordingly, and you completely understand what the other party wants. If an important detail gets overlooked and is not in the contract, then you leave yourself open to potential misunderstandings, disagreements or problems later.
In situations where an arrangement begins to break down or get difficult, do whatever you can to settle differences with the other party on your own first. The least preferred way to consult and involve attorneys after problems start, but going legal becomes the last resort and only remaining option. Here again, meeting with an attorney recommended by an appropriate non-profit referral service is generally better than searching for one in the private sector on your own without really knowing who or what you're looking for.
At the outset, use the attorney as a sounding board to talk things through and explore reasonable non-legal solutions to the problem. Don't instantly insist that they make demands, draft and send intimidating letters or make threatening phone calls. Explore less drastic options first and save the drastic stuff for later. Good attorney often know ways to defuse and resolve sensitive situations and help you mediate your way through.
Go slow, be patient, and most importantly, always allow time for your anger or frustration to dissipate before engaging with the other party. Put things in their proper perspective and evaluate what's really at stake; most problems are not life-or-death matters when you really take the time to think about them. Don't let ego or pride dictate your actions either when not that much monetary value is at stake. That can be extremely expensive, not cost effective, exhausting, and a monumental waste of time.
To repeat-- no matter how unpleasant your situation is or how fast and how badly you want to take serious action or have an attorney take it for you, be patient. The biggest mistake you can make is to get too combative too fast and act based on anger and emotion, not rationality and reason. At the early stages, give dialogue a chance to evolve, gather information, and keep track of interactions and correspondences. Don't be in a hurry to write a threatening lawyer-like letter, find an aggressive attorney to write one for you, or give the opposing party any other type of ultimatum. Plenty of lawyers are willing to club the opposition on your behalf, but clubbing can spin out of control very fast and get really expensive. What usually happens is that the opposing party views an agressive action as an escalating event, gets defensive, and what may have been a resolvable disagreement early on suddenly becomes an intractable dispute.
If you don't think you can speak calmly to the other party for any length of time, suggest using a mediator to assist in working through disagreements. Names of mediation services are usually available through nonprofit arts attorney associations. Whatever you do, don't threaten and don't escalate. You're not in court. Be clear that you are not making threats or attempting to force matters, but are rather reaching out, trying to make things better, and offering up a compromise. A mediator's job is to be neutral and to settle problems equitably. If warranted, hopefully you can find one you both agree on.
The big advantages of mediation are that it's far less expensive than attorneys, and can be done outside of the legal system. Attorneys can easily bill $5,000-$10,000 per month, and going through the court system is just about the last thing you want. Mediation may be tiring, tedious, and labor intensive, but it's often highly productive. Whenever possible, encourage the other party to mediate.
If a situation deteriorates to the point where all prospects for resolution fade, continue to use lawyer referrals and consultations as reality checks, not as preparations for war. Get clear on the positives and negatives of your case, and on what you have to lose versus what you have to gain by engaging the legal system. If you decide to fight, you should have no problem finding an attorney to litigate on your behalf and will work according to your agenda (as long as you pay the bills). Know going in, though, that the more you learn about how the law works, the better you understand that one way or another, unless substantial amounts of art or money are involved, that litigation is really expensive, one way or another you usually lose if you end up going to trial, and regardless of how things turn out, you'll likely get very little satisfaction in the end. In other words, vengeance is hardly ever cost effective.
A far healthier approach and perspective is to view disagreements as educational opportunities. Confront and work through problems as best you can (with assistance when necessary), and use the resulting lessons to become more savvy as an artist and businessperson when the next relationship opportunity comes around. No matter how things turn out, you'll learn plenty about how to negotiate with opposing parties and about human nature in general as disputes progress.
Conflict is a growth opportunity; it's not a bad thing. How you approach and handle conflicts is what may or may not be a bad thing. The preferred option? View conflicts as learning experiences rather than as adversarial nightmares. That way, even if you lose, you still come out on top. Plus you'll have loads more time to spend on positive things like your art and career.
Thanks to Nate Cooper, lawyer, mediator, musician, and Legal Services and Education Coordinator for California Lawyers for the Arts, for assistance with this article.
Disclaimer: If you need legal assistance, see an attorney. This article is not to be taken or construed in any way as legal advice.
(oversized pencil sculpture by Bob Van Breda)