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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 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 that they've either had or avoided, and attend workshops on legal issues for artists. 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 or written stipulations 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 trouble 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. Bandying about the fact that you're consulting an attorney is nothing a gallery, agent or representative wants to hear, and you certainly don't want to give the impression that you've got litigious inclinations. So play it low key unless a situation deteriorates to a point where you have no other option.
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 reasonable and affordable.
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 or to close an agreement with a handshake. The attorney will 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, then an attorney may not be necessary. But if any aspects of the arrangement are unique, different, or new, then having an attorney review them with you is highly recommended.
No matter what type of business arrangement you get involved in, DO NOT copy a standard agreement out of a book, workshop, or seminar, and use it for your contract. Form contracts are good for learning basic contract structure and wording, but may be inappropriate for your specific situation or may leave out important details altogether. Only use form contracts when you really know what you're doing, you've done it before, 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 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 an attorney is after problems start, but sometimes that's just the way it goes. Here again, meeting with an attorney recommended by an appropriate referral service is generally better than searching for one in the private sector without really knowing who or what you're looking for.
At the outset, use the lawyer as a sounding board to talk things through and explore peaceful solutions to the problem. Don't instantly insist that they demand payment or return of your art, draft and send letters or make threatening phone calls. Explore less drastic options first. Good lawyers often know ways to defuse and resolve sensitive situations.
Go slow, be patient, and most importantly, allow 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 and death matters. Don't let ego or pride dictate your actions either. 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 action or have an attorney take action 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 calm and reason. DO NOT write a threatening lawyer-like letter, find a aggressive lawyer 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. What usually happens is that the opposing party views such an action as an escalating event, gets defensive, and what may have been a resolvable disagreement suddenly becomes an intractable dispute.
Another option, assuming your relationship with the other party is still fairly intact, is to suggest resolving differences through a mediation service (also available through nonprofit arts attorney referral services). Be clear that you are not making threats or attempting to force matters, but are rather reaching out and trying to make things better. A mediator's job is to be neutral and to settle problems equitably; hopefully you can find one that you both agree on. If, however, you don't think you can speak calmly to the other side for any length of time, suggest to that person that you can have a mediator call on your behalf. Whatever you do, don't threaten and don't escalate. You're not in court.
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 further yet and 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-- what you have to lose versus what you have to gain. If you decide to fight, you should have no problem finding an attorney who loves to litigate (as long as you can pay the bills) and is willing to litigate anything. Know going in, though, that the more you learn about how the law works, the better you understand that one way or another, you almost always lose if you go to court, that litigation is really expensive, and regardless of how things turn out, you 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. No matter how things turn out, you'll learn plenty about how to negotiate with opposing parties and about human nature in general as disagreements 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 occasions to learn rather than as adversarial nightmares. That way, even if you lose, you still come out on top.
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.