The Tale Of The Lady Who Was Asked To Waive Her Moral Rights By Her Client [UPDATED]

A client asked me to review a contract given to her by a potential employer. It was a fair contract, offering her a good salary and a very generous profit-sharing arrangement if any of her projects generated income. Despite the beneficence of the employer, I told her not to sign the contract unless a small, but important provision, was removed. In fact, my exact words to her were, "Run. Run like hell." It was a single sentence near the end of the agreement that caused all the trouble:

Employee waives all moral rights to her work, including, but not limited to [list of potential projects] and will hold Employer harmless for any and all uses of her work.

"Moral rights," such as they exist in this country, are a gift, and asking an artist to waive them is a slap in the face. Here's why. Under Section 106A of the U.S. Copyright Act, artists are granted two very specific protections.

1. The Right of Attribution. An artist has the right to take credit for her work regardless of who actually profits from the use of that work. It even applies if the artist sells off the copyright. For example, if you design a logo for a company and sell the copyright to the company, you still have the right to be named as the author and even display the logo in your portfolio

2. The Right of Integrity. An artist has the right to prevent anyone from distorting, mutilating, or otherwise modifying her work in such a way that could harm her reputation. For example, if you create a logo for a client who later wants to alter that logo to include an obscene gesture, you can prevent them from doing that since it could negatively affect your reputation as the creator of that art.

Moral rights in the U.S. are notoriously limited, applying only to artists who create visual works such as paintings, graphic design, sculptures, and still photographs. If you're a musician or a filmmaker, well then you're out of luck. In those situations, it will be incumbent upon you to specify in writing that you retain the right of attribution and integrity since our current laws aren't interested in providing that protection (there's a movement in Hollywood to extend moral rights to film, but I don't see that happening anytime soon). As a rule, moral rights are a foreign concept in the U.S. - economic rights take precedence here - and really only exist because the Congress of 1990 didn't want to look like a bunch of barbaric assholes in front of the Europeans, whose moral rights laws are far more robust (the Congress of today is burdened by no such concern).

But as limited as they are here, they're still a gift. And by asking my client to waive her moral rights, the employer was asking her to NOT TAKE CREDIT FOR HER OWN WORK. I don't know about you, but that seems really problematic to me. The law does permit you to waive your moral rights, but why would you want to? If someone asks you not to take credit for your work, shouldn't they have a damn good reason to make that request? As an artist, accreditation is the backbone of your business. It's how you sell yourself. I've known hundreds of artists in my career and I can't think of a single situation where they would have benefitted from waiving their moral rights. If you can, then you're smarter than I.

Luckily for my client, the employer agreed to remove that sentence and restore her moral rights. But my advice to you is the same as that I gave to her. If a potential employer/client/partner asks you waive your moral rights, ask them to reconsider. And if they won't, run. Run like hell.

UPDATE: I just want to clarify something here. While the U.S. Copyright Act only gives moral rights protections to visual artists, ALL artists have the right to take credit for their work and display that work in a portfolio unless that right is waived by contract. The main difference between the moral rights protections under the Copyright Act and these other moral rights is that visual artists can use the Copyright Act to recover statutory damages - as much as $150,000 for each infringed work. If you're an artist who's not covered under the Copyright Act, you probably wouldn't be able to recover very much if your right of display or credit was violated.

Reading Contracts Sucks But You Should Do It Anyway Or MTV Will Broadcast Your Address To A Million People

Let's do some role-playing. Pretend you're a young man named Tristan Watson who has agreed to participate in an MTV reality show called True Life: I'm a Chubby Chaser, a doc about men who prefer dating large women. Let's also pretend you agree to do the show on the condition that MTV withholds your identity, referring to you only as "Tee" during the broadcast. This agreement is made via handshake, but the anonymity clause is never incorporated into the final written contract, which you sign. Once the show airs, you discover that not only is your full name used, but MTV also broadcasts your address and even your apartment number. You receive death threats and you lose your job. You sue the network for lying to you about its promise of anonymity and for all the harm it has wrought in your life, but because the contract also includes an agreement that you "will not sue the network for any reason," you lose big time.

Sadly, this is no game. There is a real Tristan Watson and everything I just said actually happened to him. Watson's experience is not a novel one. Contracts that broadly favor one side happen quite a bit in the entertainment world where one party (i.e. MTV) has considerably more bargaining power than the other (i.e. Watson). These lopsided contracts are even more prevalent in the nonsensical world of reality TV, where American teens will sign away their birthright for a chance to become a celebrity and the networks make absolutely no attempt to be reasonable in contracting with said teens. Unfortunately for Watson and those like him, even if the contract hadn't contained a promise not to sue, there are two inter-related concepts in contract law that ensure he was destined to lose his lawsuit against MTV.

1. Absent extraordinary circumstances such as fraud, U.S. courts presume that every party to a contract has read and understood the terms. So pleading ignorance when you discover you agreed to something you didn't intend almost never works. Had Watson taken a few minutes to read the contract before signing it, he would have discovered that the anonymity clause was nowhere to be found and might have avoided the drama following his appearance on True Life. This is a shining example of why you should always always always read your contract, even the ones you write yourself.
2. In situations where two parties agree verbally to a term, but never actually integrate it into the final contract, that term is not considered valid once the contract is written and signed. This is called the parol evidence rule, and it's almost impossible to overcome if incorporating that term would change the contract.

Look I get it. Reading contracts is no fun. They're boring, they're long, they contain a lot of junk, and they're usually written in legalese, making them tough to understand. Believe it or not, lawyers hate reading contracts for the same reasons. It's true! Why do you think we charge you so much money to draft and review your agreements? Because it sucks!! That's why mobile apps specializing in generating simple contracts (like Shake) are making a big splash nowadays.

Sucky or not, however, there's no getting around it. Whether you're a high-bargaining party or a low-bargaining party, then only way to preserve your interests is to get comfy reading contracts. There's no better way to ensure that harmful provisions weren't snuck in there when your back was turned. Because once you put your signature on that piece of paper, that's all she wrote my friend. You are bound to the terms in that contract whether or not you read it.

[Author's Note: I should add that if Watson could prove MTV acted fraudulently, the entire contract would be invalidated, including the promise not to sue the network. Since Watson lost his lawsuit, I'm guessing that he couldn't meet that burden.]

Lawyers vs. Apps: A Grudge Match To The Death

I like to give away lots of free legal information on this blog because I think it's important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I've had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can't cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can't give you advice or insight. It can't examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn't mean you know how to apply them). No two situations are the same and everyone's needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.

Such was my mindset when I wrote this review of Shake last Monday, a new app that allows users to generate contracts right on their iPhones without the need for a lawyer. I wrote that the app had promise primarily because it does something I support: bring clarity to the law. My exact words were, "Shake makes [contracts] easy to make, easy to read and best of all, short. By doing this, it incentivizes people to use contracts in their work, and anything  that gets artists thinking about their work from a legal perspective is a good thing." But the app had several larger issues that I found troubling; namely, the lack of flexibility provided by stock contracts and the ambiguous usage of the term "work made for hire" in the freelancer contracts.

Three days after my review posted, I found myself on the phone with Vinay Jain, the app's chief legal officer, talking about my concerns. The call was very productive and when I hung up 45 minutes later, the following was clear to me:

1. Vinay was open-minded, thoughtful, and took my concerns seriously. Regardless of what he does with my input about the "work for hire" issue, I felt heard.
2. He puts a lot of time and energy into researching contract law and making sure that the intricacies of different state laws are addressed in each of the agreements provided by Shake.
3. The Shake team is committed to democratizing the legal transaction process by making it less intimidating.

In other words, I came away from the call with my reservations addressed and feeling deeply impressed by what the Shake team was trying to accomplish and the manner in which they were trying to accomplish it. The app certainly isn't perfect (what app is, frankly?), but there's room for growth, and it's pretty clear that growth will occur over the coming weeks and months. More important to me, Vinay assured me that the team behind Shake agree that their app cannot and should not be a replacement for lawyers. Per the app's FAQ page: "We designed Shake to let you quickly record agreements for everyday transactions that you otherwise might do with a verbal 'handshake' agreement... Shake isn’t for complex or high-stakes transactions. Are you selling your company? Shake is not for that. You should talk with a lawyer. Are you selling your used computer on Craigslist or hiring a freelance designer for a basic job? Shake is perfect for either of those."

My hope is that if you use Shake, you use it as intended - to make quick and easy contracts where you otherwise wouldn't - not as an excuse to get out of hiring a lawyer just because of inertia or disdain (lawyers aren't very well liked in this country, in case you didn't know). A good lawyer isn't a black hole for your money. A good lawyer protects and elevates you. The people behind Shake seem to understand that, so I will support them.

Legally Binding Contracts? There's An App For That

The future is now, and it's filled with apps that render most learned professions obsolete. On the docket for today: an app that replaces lawyers.  Hooray?

Shake is an app for your iPhone that allows you to "[c]reate, sign, and send legally binding agreements in seconds, all from your phone." The app contains a number of stock agreements, such as non-disclosures, buy and sells, personal loans, and freelancer contracts, with more types of agreements getting added in the near future. The app is simple to use as well. You answer several questions and then the app generates your contract, which both parties can sign right on the phone. Voila! Legally binding contracts without ever wasting a sheet of paper or paying for legal services!

A friend told me he thought this was really sketchy [although the signatures are digital, they are still legally binding], and several lawyer colleagues were horrified by the app. Being a lawyer myself, I understand why. No one wants to invest time and resources to learn a trade only to have that trade rendered obsolete by technology. Even if the technology is very pretty.

I spent a few days playing with Shake to see if my friend and colleagues were right, and despite some big problems with the app (see below), I've decided that I'm okay with it. Kind of. Shake does one thing really right, and for that reason, I can't hate it: contracts are hard; they're usually long and often boring to read and write. Shake makes them easy to make, easy to read and best of all, short. By doing this, it incentivizes people to use contracts in their work, and anything  that gets artists thinking about their work from a legal perspective is a good thing.

But there are several big caveats that prevent me from recommending the app outright.

1. Stock contracts offer no flexibility in their terms and are not tailored to the specific circumstances of your transaction. While this may not be a big deal for some of you, I strongly advise caution. Your work is unique to you, and only you know the terms that will make the transaction worthwhile.  Stock contracts, by their nature, cannot give you the flexibility to ensure that your best interests are being served.
2. Contract law isn't regulated by statute at the federal level, like trademark or copyright.  Contract law varies from state to state, and what may be legally permissible in one state may not be in another.
3. When you use language you didn’t draft yourself or authorize a lawyer to draft for you, you could end up consigning yourself to something in your own contract that you don't intend. For example, in Shake's stock freelancer agreement, it states that the freelancer's work is a "work for hire."  This is wrong because in most cases, a freelancer's work is only considered a "work for hire" in a very limited number of circumstances. To confuse matters, the agreement later uses language that directly contradicts what a "work for hire" actually is.  These types of drafting issues can certainly be fixed by a software update, but right now, the contract is  ambiguous and confusing at best, and unenforceable at worst.

If the choice is between using Shake or nothing, I'd tell you to use Shake every day of the week and twice on Sundays. But if you want a contract done right and in a way that serves your legal interest, draft it yourself or, even better, hire a lawyer.  

Licensing Getty: A Cautionary Tale For Artists Using Stock Photos In Their Portfolios

[Yesterday I got an email from a reader telling me a pretty scary story.  She's permitted me to share it, but for the sake of confidentiality I'll change her name to "Jean".]  

Five years ago, Jean was hired to design an ad for a local business.  As part of the design process, she incorporated a stock photo from Getty Images, an online stock photo library.  Jean's client liked the work and paid Getty a licensing fee to use that photo in the ad.  The terms of the licensing agreement stated that the image could be used in print ads only.  Jean put the ad on her personal portfolio website.

Last July, Getty's netbots discovered the ad w/image on Jean's website.  Because the terms of the licensing did not include website use, Getty sent her a letter accusing her of breaching the license agreement and demanding $8,000 in usage fees.  The netbots also found two images that she had used in mock-ups for other clients, but those mock-ups were never approved by the clients and the images never licensed.

Faced with a pretty scary situation, Jean did what a lot of people would do: she took down the images.  This seems to have placated Getty because no more demand letters were sent.  But did she really have to take them down?

Well, there are two issues determining whether Jean should fear Getty's wrath.  1) Did Jean's use of the image constitute copyright infringement?  2) Did Jean's use of the image constitute a breach of contract?

Regarding Copyright Infringement

Most IP lawyers agree that displaying your work in a portfolio, even when the copyright is owned by someone else, is permitted under fair use.  That's because portfolios are non-commercial in nature, and don't generally compete with the copyright owner's financial interest.  Jean's case is slightly different because the artist and the client aren't the only parties involved.  There's a third-party copyright owner (Getty) who is laying claim to the image.

But even with that wrinkle, Jean is okay leaving the ad featuring the licensed image on her site.  It doesn't conflict with Getty's market and she's not profiting from its display.  She's using it as an example of her prior design work.  No copyright infringement here.

Regarding the unlicensed images, I think removing them was the right decision.  On the face of it, fair use applies to these images just as they would to the licensed image.  But fair use is a squishy doctrine and in the absence of a license agreement, a judge could look at Jean's website and reasonably believe that she's not an innocent infringer (using images without permission from a website whose sole business is to license those images could indicate intent to pirate).

Regarding Breach of Contract

According to Jean, Getty placed very specific conditions on the use of the licensed image - print ads only, no web.  Any violation of those terms constitutes a breach of contract, which is why Getty sent her an $8,000 bill.

Getty is fiercely protective of its copyrights.  Their licensing agreements regulate every possible use of their images: the size of the image, number of times the image can be used, what mediums the image can be used in, and even placement of the image in the final artwork.  When I was a producer, I would license stock photos from Getty all the time and they negotiate like Iranian hardliners.  One time, I was trying to get their permission to use a single stock photo for a fifteen-year term in a documentary.  No matter how hard I pleaded, I couldn't get them to budge from a ten-year commitment.

That said, standard agreements like these don't usually make third-parties liable for breaches of contract.  Meaning that since the agreement was between Getty and the client, the terms of the contract likely didn't apply to Jean.  Therefore, Jean is not liable for breach of contract.

So What Can Jean (And You) Do?

Realistically, Jean had no legal liability for displaying her work on her website.  But to prove this, sadly, Jean would have to risk being sued by Getty.  And as I've discussed before, going to court and winning, especially on a fair use case, is still a loss because of the time, money, and effort she would have to invest in defending herself.  So the trick is to minimize liability before Getty can even send you a letter.

So, for all you designers who use stock photos in your work to stay (legally) safe, here are a few things you should always do:

1. All photos should be properly licensed by you or your client
2. Web use and/or portfolio use should be explicitly permitted in the license agreement
3. Even if the licensing is done by the client, read and understand the terms of the licensing agreement to understand your liability to the other parties (i.e. if the client pays the license fee, are you as the artist liable to Getty as well for a breach of the contract?)

Remember, as an artist, your portfolio is the face of your business.  The less work you can show, the less successful your business is.  But because Getty's first instinct is to throw lawyers at you, each of you has to determine for yourself whether fighting back is a viable option.  Following these three tips will help minimize that possibility.

[Author's Note: I'd be interested to hear from other lawyers out there if you've had different experiences working with Getty.  Ditto for artists.  Hit me back in the comments section below.]

Death of the Unpaid Internship, Part 2: Black Swan's Revenge

Two weeks ago, my wife and I were driving home from an unsuccessful apartment hunting trip.  In an attempt to get my mind off the stress of looking for a new home, she asked me what I thought about the recent ruling in the Black Swan internship case.

For those who don't know: Eric Glatt and Alexander Footman, two interns who worked on Darren Aronofsky's Black Swan sued the film’s distributor Fox Searchlight, claiming that the company’s unpaid internship program violated minimum wage and overtime laws.  They argue that they were wrongly classified as unpaid interns when they should have been paid employees.  Well about three weeks ago Federal Judge William H. Pauley III ruled in favor of Glatt and Footman, stating the two should have been paid for their work, and the failure to pay them was a violation of the Fair Labor Standards Act (FLSA).  In his opinion, Judge Pauley said that Glatt and Footman

worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received - such as knowledge of how a production or accounting office functions or references for future jobs - are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school. 

Which essentially means that Glatt and Footman did not fall under the federal definition of "intern" and should have been paid as employees as a result.  Judge Pauley went on to say that even though Glatt and Footman knew what they were signing on for, the FLSA

does not allow employees to waive their entitlement to wages.... An employer is not to be allowed to gain a competitive advantage by reason of the fact that his employees are more willing to waive [FLSA claims] than are those of his competitor.

You can read the whole decision here if you like.  It's a pretty big deal and I'd be lying if I said I didn't make a celebratory fist-pump when I read the news.  [For the record, I'm only talking about internships taken by non-students, not educational internships, or volunteerism/ pro bono work]. I've made it known in the past that I'm no fan of the unpaid internship for adults who are no longer in college, which is why my wonderful and patient wife didn't bat an eyelash when, stressed out from looking at a string of ugly apartments, I snapped back, "Any company that refuses to pay employees for their work doesn't deserve to exist!"

That's a pretty militant proclamation and having some distance from the heat of the moment, I've decided that I support the content, even if the delivery and word choice don't properly communicate how I truly feel.  I shudder at the idea of being labeled an anti-corporate socialist (although I'm sure someone will accuse me of it), so allow me to clarify my stance.

1. Unpaid internships for non-educational purposes are bad for employees because experience cannot pay the rent.
2. Unpaid internships for non-educational purposes are bad for the market because they force entry-level workers to work for nothing, suppressing wages for everyone up the ladder, and thus reducing taxable and spendable income for workers.
3. Unpaid internships for non-educational purposes are bad for our culture because they perpetuate the [absolutely wrong] belief that being taken advantage of is somehow the same thing as "paying your dues."

When a company elects not to pay an intern while profiting off his or her work, that tells the world that it's okay to get something for nothing, and that's not how capitalism is supposed to work.  I know first-hand what Glatt and Footman have gone through, taken advantage of and then cut loose.  The last time I wrote about this, a friend asked me if it was okay to accept an unpaid internship in the same industry she had already been working in for several years.  She had just moved to a new city and was concerned that she was an unknown commodity in her new location, despite her years of experience.  To her, the unpaid work would be a good way to break into the industry in that city and build a name.  While I understood her thought process, I strongly disagreed with her and told her to hold out for actual paying work.   To me, her willingness to go without pay signaled something rotten about how exclusionary our industries have become (especially the glamour industries like entertainment, publishing, and fashion), even to people who have experience within those industries.  Here is someone with six years of direct expertise in her field, who has skills that are immediately transferable and applicable, yet she felt that her only recourse was to start over from the bottom, as if she were a 19-year old freshman.

The longer I think about it, the less flexible I become on the matter.  Are there ever good reasons to accept unpaid work?  I'm sure someone will argue that building a reputation at the beginning of a career is a worthwhile excuse.  A few months ago I might have even been convinced.  Obviously every free-thinking adult should consider all the options before committing to a potential income drought and weigh those options based on the facts of each individual situation.  But looking at it from the macro view, I find those arguments unconvincing in the light of Judge Pauley's ruling - I personally believe you're better off finding a mentor and/or developing your own projects... you're going to be unpaid anyway, might as well develop some entrepreneurial skills while you're at it.  That's why I align myself behind the FLSA standards (found here) and feel comfortable stating categorically that unpaid internships are only acceptable when done for college credit and in conjunction with a legitimate educational institution.  The rest of the working world is starting to catch up too.  Two weeks ago, three former interns sued Gawker Media for violating the FLSA, and a few weeks before that, a former Condé Nast intern sued the company for paying her $1.00 an hour under its internship program.  Hell, one law firm is specializing in these Fair Labor internship cases by identifying individuals who held unpaid internships and reviewing the conditions of their employment for possible wage-and-hour violations.

So this is all good news right?  Well anything is possible.  It's certainly possible that the Black Swan case and all the subsequent unpaid internship cases might cause a sea change in the way employers run their internship programs.  It's possible that they'll start paying interns for their work.

But I don't really think that's going to happen.  My fear is that the current system will just continue to lurch forward in spite of the Black Swan ruling.  Or worse, companies will strip out any real work or educational opportunities and relegate interns to picking up coffee, dry cleaning, and lunch orders.  Lord knows there are enough people out there willing to bet that an unpaid internship is a lesser evil than complete and utter unemployment... I can understand that.  But the system only changes if we all make the commitment together.  I hope Glatt and Footman's win is the beginning of that change.

Thor's Dark World: Why Over-Delivering is a Breach of Contract

Thor: The Dark World, the sequel to Marvel's 2011 hit Thor is currently deep in post-production and is slated for release this winter.  If you've been following the production of the film like I have, then you've heard rumors that Marvel President Kevin Feige and the film's director Alan Taylor are in the midst of a major disagreement.   The nature of that disagreement remains a mystery, but one recent rumor claims that the fight is over - of all things - the running time of the film.  Taylor apparently wants the film to run for two and a half hours, while Feige wants the film to clock in at two hours even.  Evidently, the conflict has gotten so bad that editing has halted and a mediator has allegedly been brought in to resolve the situation.

Now this rumor may be complete BS (although the rumor mill has been swirling for weeks that Taylor was taken off the film, right before composer Carter Burwell's exit a few days ago), but I thought it was unique opportunity to highlight an interesting little wrinkle in contract law.  Namely, that over-delivering on a contract is technically a breach and can result in a lawsuit for damages.

Holy Hell?  You can actually be sued for giving the other party more than they originally bargained for?  Yes you can, and if these rumors are true, it's exactly what Feige appears to be accusing Taylor of - breach of contract by delivering more movie than was originally requested.  It feels counter-intuitive to say that getting MORE than you paid for is somehow a negative thing worth suing over, and to some extent that's right.  It's rarely considered a bad thing to get more than you asked and if you were to sue over it, a judge would probably dismiss the case and maybe even hit you with a Rule 11 sanction for bringing a frivolous lawsuit.  That's probably why Marvel is bringing in a mediator instead of suing Taylor outright.  Why waste the time and money to sue the guy when a judge would just dismiss the case because of its inherent ridiculousness?

But a breach is a breach, even if benefits the aggrieved party.  There's a reason why high-level contracts like these are so time-consuming and expensive to put together; the parties have very specific needs and demands. You can bet your bottom dollar that if a provision ends up in a contract, no matter how absurd it seems,  it's important to the parties that it gets carried out exactly as written.  Any deviation from the terms of the contract is considered a modification, which is not enforceable without the approval of both sides.

And anyway when you think about it, over-delivering on a contract can actually be a negative thing in some situations.  Movie studio generally hate long films because they can't schedule as many showings - 5 to 6 showings per theater per day for a two hour film as opposed to 3 or 4 for a three hour film - meaning the film will make less money during its theatrical run (Although Avatar and The Lord of the Rings films bucked that trend). Marvel is not, after all, a charity.  They want to make as much money as they can, and they've contracted with their talent a certain way to achieve that goal.  If Taylor's contract does indeed specify that he is to deliver a two hour film, and he breaches that provision by delivering a movie that's 30 minutes too long, then it could actually be detrimental to Marvel.  Marvel will be required to spend extra time and extra money they hadn't planned on to edit the film down to the requested two hours.  Reasonable minds can argue whether it is financially or artistically prudent to predetermine a film's running time before a director has even been hired, but Marvel has determined what it wants, has contracted to get what it wants, and is perfectly within its right to enforce that.

[Updated!] Paper Equals Proof, Why You Should Get Everything In Writing

"A verbal contract isn't worth the paper it's written on." - Samuel Goldwyn

Even though this quote is both misattributed and didn't actually happen, I love it because it speaks a simple truth about contracts. Namely, if you don't have one in writing, you don't have one.

When I first moved to LA after graduating from RISD, I picked up some freelance work from an indie producer who was trying to get some low-budget TV projects off the ground.  He liked my moxie and we got along well, so he hired me as a camera-operator for a demo he was producing.  He offered me $100 per day for three days work in a transaction that was conducted orally.  I wanted the offer in writing, but I was so desperate for work that I didn't want to negotiate myself out of the job by asking for it.

Yes, I was stupid for not getting it in writing and when he stiffed me on half the payment, we both knew that even though a verbal contract is legally enforceable, I couldn't prove that he owed me another $150. There are thousands of young artists - and a whole lot of experienced ones - in the same boat who don't put anything in writing because they don't know that they should, can't be bothered, or think that drafting a contract is too expensive and/or time-consuming.  Now I certainly can't do anything about laziness or apathy, but I can tell you why contracts are important and how you can draft your own.

As a lawyer, I like everything in writing because paper equals proof; that is to say, having something in writing is proof that a conversation took place, or that an agreement occurred.  That's all a contract is after all: evidence that an agreement took place so that if you end up in a legal battle, you can prove your side of the story.  Otherwise you end up in a "he said/he said" situation and courts generally don't look favorably on those. So for the love of God, if you're hired to make a work of art, or you sell a piece of art, memorialize it somewhere somehow.  "But Greg" you might say, "don't contracts have to be drafted by lawyers?"  Well my friends, here's the dirty little secret behind contracts - NOPE!

At the risk of negotiating myself out of potential clients (I do that a lot, don't I?), a contract is no more enforceable in court just because it was written by a lawyer.  Obviously there are certain benefits to having a contract drafted by someone with a legal education - namely a lawyer can think of all sorts of ways to protect you in writing than you couldn't dream of - but if you're like most artists out there, then you don't have a lot of discretionary cash lying around to make this happen.  So instead, I'm going to give you some tips to help you make your own while maximizing your self-protection.

1. For a contract/agreement/bill of sale to be valid, it must state all the material terms.  Specifically, you need to mention the parties involved in the transaction, the quantity of items sold or the type of service rendered, and price.  You should also put anything else you think is important.  If you don't wish to have a return policy, make sure to state that all sales are final.
2. If you're shipping a work to a buyer, write down which party is liable if the art is destroyed or damaged during shipment.  This is called Risk of Loss and can bite you in the ass if it's not discussed ahead of time.
3. Make sure to mention who owns the copyright upon completion of the work.  If it's a work-for-hire situation, you could end up losing it without even realizing it.
4. Use plain English.  Most people think a contract needs a lot of "heretofore's" and "wherein's" and "thusly's"  but they just make it harder to read.  Instead, draft a contract like you would draft a professional email to a colleague.
5. Email chains are acceptable in lieu of a paper agreement as long as the material terms are there and understood by all parties.
6. For bills of sale, they can be sent after the sale, although they still need the material terms.
7. You can use a template version so you don't have to draft a new one from scratch for each transaction.
8. Keep two copies of each final agreement, one physical paper copy and one scanned copy on your hard drive.
9. A contract isn't valid if both parties don't agree to all the terms.  Before you start working, make sure the other party is on board because you could end up doing a lot of work without getting paid.
10. Finished contracts should be signed and dated by both parties and each party should have a copy of the signed and dated final.
11. Stand your ground on the terms you can't live without and be flexible on everything else.  If our Congress has taught us anything, it's that drawing a hard line in the sand on every issue results in no one getting anything they want.  Be flexible and willing to negotiate.
12. Finally, don't be afraid to ask for a written version of your verbal agreement.  Too many people don't do this because they think it's disrespectful or indicates mistrust.  This is not true.  If anything, you'll look more professional for it.

The truth about contracts is that if you know what you want and are willing to put a little time and effort into getting it down on paper, they're not nearly as intimidating as they seem at first.  That said, if you truly don't know what you're doing (I leave it to you to know when that is), or you're just not comfortable drafting an agreement, please please please hire a lawyer to do it for you.

If you're trying to make a living as an artist, then you don't need things to be more difficult... the deck is already stacked heavily against you.  Having a written agreement for each of your sales/hires/commissions/whatevers may create a bit more work up front for you, but I promise you that the one time you need it and you have it, it will save your ass.  And then it will be worth it.