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Artists, Don’t Freak Out, But You Need a Lawyer

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No matter your educational journey, there are a couple of things that artists just don’t learn about the profession, despite whatever efforts you make at “Professional Development.” Chief among these massive knowledge gaps? Any guidance in contracts or trademark and copyright for artists, two intimidatingly legal tent-poles that hold up any sturdy tent of an artistic career. Ten years and more post-undergrad, my friends still text me to see copies of my commission contract, and I get vaguely hot then suddenly cold whenever I’m asked to sign anything with listed terms. 

It must be said that not every artist is like this. Some are prepared and I, for one, salute them. In fact, I’d say there are four camps of people: those who have sought legal counsel and are prepared, those who have made something legal-ish themselves and feel prepared, those who know they should get prepared but haven’t done anything yet, and those who see no point to legal protection whatsoever. This article is written with the latter three groups in mind.

Artists have historically waited to “make it” to worry about legal matters, reasoning that once they get gallery representation or get to play a big venue or get hired for that full-time faculty position they can go “legit” in a way other professionals might just call “doing business.” But what happens when traditional gallery models that offer representation wrapped with legal support are continuing to fade away and more artists function as their own agents and brokers, selling their work mostly online or showcasing it in temporary nontraditional settings? We end up with the mindset that we can do anything we need to do for ourselves. Artists today have more opportunities to show work in legitimately great venues, as well as sketchier ones, than ever before. So it stands to reason that we’d be experts in contracts and the legal protections they could offer us. And yet, most of us decidedly are not. I, for one, didn’t go to law school.

Adam Holofcener (MdVLA Executive Director) and Sunny Cowell, Esq., current MdVLA Board Member and attorney. Assisting artists during 2018 Art Law Clinic at Creative Alliance
Holofcener peppers his conversations about art law with comforting amounts of legal jargon, an acknowledgment that capitalism protects very few, and the right amount of expletives to express his frustration that the group of people he cares the most about—artists—by and large do very little to cover our own butts, legally speaking.
Suzy Kopf

Most of us are in the dark woods of the art world together, figuring that having a contract that holds water would cost money and we’ll cross that bridge if and when we have to for a specific show or a specific client that demands it. We dread attaching parameters to personal relationships or paying for something monthly, like general liability insurance we don’t feel like we need because nothing has gone really wrong yet. And because of this, we are by and large leaving ourselves unprotected and open to the elements, lying outside the makings of a perfectly good tent, ostensibly looking at the stars while also offering up our flesh as a mountain lion’s treat.

What’s frustrating to me is the answers to artists’ legal questions are knowable—indeed, there are professionals whose entire job it is to help artists buy the correct insurance coverage or make sure they aren’t getting screwed over by a gallery contract. These professionals typically aren’t posting aesthetically pleasing interiors on Instagram, they may not be going to your art openings, and they’re probably not going to be someone you meet by chance at the coffee shop—they are counsel you have to seek out intentionally. So I decided to do that and come up with some general advice to inspire those of us who know we should probably be doing this better. This column is not legal advice, but I hope it energizes you to go get some for your own specific situation.

If you’re in Baltimore and you have a legal quandary, a good first stop is the Maryland Volunteer Lawyers for the Arts, led by lawyer and musician Adam Holofcener (read Rebekah Kirkman’s review of Holofcener’s 2019 album; his most recent album, GEE-ZA-WHIZ, came out March 29). A fast talker who has helped many a client out of a legal jam, Holofcener peppers his conversations about art law with comforting amounts of legal jargon, an acknowledgment that capitalism protects very few, and the right amount of expletives to express his frustration that the group of people he cares the most about—artists—by and large do very little to cover our own butts, legally speaking. Holofcener is unique in his line of work because he understands both the art world and the law. From his point of view, a lawyer’s work is to “make your dreams real on paper—we’re there to tell you when a contract is signing your life away,” he says. “Every commercially successful artist I’ve worked with is a good business person.” 

Holofcener points to the camps of people I introduced above, acknowledging there is generally no “in-between; there are artists that don’t think about any of these things and then are artists who are business people. People expect to make a handshake deal to cover things. The typical [contract and consignment] terms that I see are no terms in Baltimore City.” So artists hang work in artist-run spaces without any written documentation that the work has been dropped off and hung, musicians play gigs and then don’t get paid what or when they expected to be, freelance writers author articles and spend months chasing down a few hundred bucks—a contract would have helped in all of these scenarios. “If it’s supposed to be a consignment agreement, it needs to exist.”

And yet, Holofcener is quick to acknowledge that “the law is not the arbiter of right and wrong. Terrible things can happen to you and the law will have nothing for you, just like terrible things can happen and the police are not going to be the people you want to call. The more that you know, though, the better you can protect yourself.”

 

Attorney assisting artist at 2018 Art Law Clinic event
There’s really no two ways about it: if you’re selling work valued at more than $500 in Maryland based on an arrangement, you need a written contract between the parties.
Suzy Kopf

The logic that many artists apply to their lack of legal protections—nothing has gone wrong so far, so nothing will go wrong in the future—is a fallacy that excuses bad business practice. “Everything is always fine until it’s not,” Holofcener says. “People are calling me because something went wrong. As an artist, you’re familiar with the concept of a practice; a business practice is the same thing as that. If you paint for 40 hours a week, you might need to switch over to spending 35 hours a week painting and 5 hours doing the business side. Artists spend years becoming a great artist and no time becoming a business owner. It’s not going to happen overnight. If everyone started the first year of art school developing their business practice, everyone would graduate on even footing.” To spend little to no time learning how to do something such as preparing a contract that protects your claim to your own work and then expecting it to turn out well is not only not planning ahead, it’s planning to fail. 

Holofcener also works with a number of artists who put off seeking out counsel—not because they didn’t think it was important, but because they thought that they could DIY well enough. Like bathroom plumbing you may have illegally installed in your work-only loft post-college, or “borrowing” the WiFi from the business next door, these DIY solutions can work until they really, really don’t, and then you’re basically in free-fall. Holofcener understands that the problem with many contracts (that weren’t written by a lawyer) is specificity. “People don’t realize how difficult it is to create language that definitively means something,” he says. “As artists, we love the ambiguous nature of language but that ambiguity is not helpful when you’re trying to figure out who brings what to your LLC.”

There’s really no two ways about it: if you’re selling work valued at more than $500 in Maryland based on an arrangement, you need a written contract between the parties. You should hire a lawyer to draft this contract and help you with any negotiation. Arming yourself with a legal document before there is a problem protects you against loss of income, makes you seem more professional, and clearly outlines the parameters of a business relationship, which can be helpful later on if someone tries to change previously agreed-upon terms.

 

Sunny Cowell, Esq., MdVLA Board Member and attorney. Assisting artists during 2018 Art Law Clinic at Creative Alliance

In addition to hiring a pro though, Holofcener suggests you apply good common sense to all of your legal situations. “The number-one most important thing about signing a contract is signing a contract with someone you trust,” he says. “The majority of artists that come to me with a breach of contract, the best thing they can do is take someone to court.” As anyone who has watched a syndicated court show like Judge Judy can tell you, taking someone to court for any reason is expensive and does not guarantee a positive result for the injured party. 

Before you even seek out a lawyer, you can investigate the person or entity you are considering signing a contract with. Instead of responding emotionally to the excitement of a new opportunity, take the time to really check out the conference, gallery, or venue. Ask other people who have worked with that person or organization before how their experience was. “I tell artists they need to do due diligence—go ask the other artists that gallery shows how their experiences with the gallery were,” Holofcener suggests. “Just like you would ask someone how their Prius is treating them before you buy one.” 

It’s not the way a lot of us like to think about our careers, but Holofcener points out that “artists need to make decisions based on their determination of return on investment.” If the exhibition you’re being offered is in a nontraditional space that can’t be visited without an appointment during COVID, and the gallery is only offering limited promotional opportunities, it’s unlikely that you will sell enough work to justify how much you’ll have to spend on framing, transporting, professionally photographing, and insuring the work. These are just facts a lot of us don’t like to look at too hard because it means saying “no” to what feels like your big break. However, if you make sure that you do enough work (either arts-related or otherwise) to cover your expenses, then you can strategically decide to engage in a certain number of less-profitable opportunities. 

Holofcener knows that the real mental block for artists regarding contracts is they force artists to rethink their entire business structure and do the business work they’ve been ignoring for a long time. He explains that clients might think, “When I hated contracts, I didn’t have to put any energy into them. Now that I hear they could be useful for me, I have to think about it!” But, he continues, “you have to think about value and how your work interacts with the commercial sphere. It forces you to take on some costs that you weren’t legally obliged to before. That’s why lawyers can be seen as dream killers. To some, I’m a dream killer because I help people see the consequences of the business decisions that they make.” Much of Holofcener’s work is getting his clients to confront realities they have been purposefully ignoring, some of them for decades.

 

Exec. Director Adam Holofcener and current MdVLA Board Secretary Marquis "Mighty Mark" Gasque performing in Baltimore for an educational event on music collaboration contracts
If you’re an artist who believes that the image you sell is of absolute value, you need to take legal steps to make your stuff more protected.
Adam Holofcener

Making work and putting it online for free, as is customary for all kinds of artists today, is another minefield of possible legal issues. Anything online can potentially be infringed upon by anyone with internet access, so Holofcener explains, “if you’re an artist who believes that the image you sell is of absolute value, you need to take legal steps to make your stuff more protected. Putting your work in lower resolution and putting a watermark on it does protect it and encourages your actual audience to reach out for the real thing.” The recent boom in Non-Fungible Tokens (NFTs) associated with digital art and music is an example of artists thinking through how to create monetary value for their work that might otherwise be difficult to make commercially viable. 

Holofcener is honest about the fact that artists often have no idea how to value their work and often think that infringement has occurred when it has not. He gives the hypothetical example of a musician with a SoundCloud account claiming Rihanna has stolen their beat. While much of popular music has similar melodies and phrases, if the account in question has only a few hundred plays, it’s less likely that Grammy-decorated recording artist Rihanna heard it, and therefore less likely that an actual claim of infringement against Rih Rih would be successful.

Most artists did not go into a creative field with dollar signs in their eyes, and the arts and capitalism make strange bedfellows as a result. Holofcener likes to point out that there is a reason why royalty used to patronize artists. For artists who are reading this and feel like their budget cannot accommodate legal counsel, Holofcener believes they need to think hard about how their business plan will allow for their basic needs to be met. This may require an artist to think strategically about taking on a non-arts part-time job to cover rent/food costs. By alleviating some pressure put on the revenue column of your Profit and Loss statement, an artist can more efficiently use the time and resources that they have at their disposal to purposefully grow capacity in their professional arts practice. He points out the lack of funds is the very reason why “volunteer lawyers for the arts have cropped up in every major art center—there is a way to get an affordable lawyer in every market but you have to prioritize it.”

At the end of our conversation, I asked Holofcener if COVID has changed anything about his work with MDVLA. His case numbers and inquiries are up by 50 percent, but not all of it is bad news. Early in the pandemic, his team was working on breaches of contracts, but these days he’s helping more and more artists complete business pivots or open entirely new businesses. Artists are making their work. “Artists are the ultimate hustlers,” Holofcener says. “The heinous conditions we’re all facing now are almost par for the course for artists; the difficult-to-impossible conditions of having a career in this field hasn’t deterred them so far.” Let’s keep it up.

 

Images courtesy of Maryland Volunteer Lawyers for the Arts

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