Part 2 Contracts
The Importance of Contracts and Negotiation		One of the things that inspired me to write this book was the realization that over the past two-and-a-half years, my partner and I have, individually or jointly, signed twenty contracts. Of those twenty, we had to write twelve ourselves, we had to re-negotiate and re-write seven, and in only one were the terms acceptable and the contract able to be signed “as-is.” I phoned around to my fellow artists and discovered what I already suspected; that this situation was not unique to our studio, but I also learned that some artists felt they didn’t have the legal experience or tools to be able to negotiate contracts, so they were going along with whatever was offered them, or doing without a contract altogether. It is my intention, and the intention of the other experienced artists who have helped me with this project, to make sure that all artists in our field have the tools they need to negotiate a fair contract. A contract is a form of communication. It is as fundamental to beginning a work for the professional artist as is a canvas or armature. And although you might be told otherwise, there is no such thing as a “standard contract”. A contract is a negotiation between two parties. Always. And negotiating a contract is not adversarial. There is no reason why both parties signing a contract shouldn’t feel that they have won. It is really important that an artist not feel that the outcome of a contract negotiation will either be that he/she has defeated the other side, or that he/she has been defeated by the other side. In fact, you’re better off if you keep your feelings out of the negotiations entirely. There is no reason why contracts should be imposing or unintelligible; it is crucial, however, that they cover thoroughly all of the issues and be precise in their language. If an artist is told that he/she will be paid up-front, then in addition to the amount of payment, the deadline for payment should clearly be stated in the contract. Avoid also vague or imprecise language, as well as language that says more or less than what you intend to say. For example, if an artist wishes to license and work for a particular exhibit in a museum and no other purpose, the contract should not say that the work may be used for that exhibit “and other exhibits which the museum may later create or in which the museum later may be involved.” The process of negotiating and preparing a written contract is an opportunity for both sides to identify and address all of the business points, issues and concerns. Remember, honest people can differ vehemently over an issue which neither really considered an issue at the time they entered into an arrangement. It is worthwhile to consult with an attorney in preparing agreements, particularly where the artist is not experienced in writing or negotiating agreements, or is simply “new to the business”. An attorney should not have to spend a great amount of time in preparing a contract, particularly if the artist provides the attorney with a draft of what is proposed or an outline of business points to be covered by a contract. The attorney can react to the draft or the list of business points, and sometimes discussions between the attorney and the artist will uncover important issues which the artist had not thought of before, but which clearly should be addressed in the final agreement. In all instances, the attorney should be consulted before any document is signed, and before the artist makes a binding commitment of any sort to the other party. This book contains sample contracts which may be useful to the artist. These contracts are written in terms favorable to the artist and author. If the party you are entering into negotiations with has no contract, these contracts are a good starting-off point, although you may be asked to modify some terms. Or you may have been given a contract which, by comparison, is very unfavorable to you, in which case, these contracts will provide you with ideas and terms to use to negotiate a final agreement. It’s pretty easy for a major company to intimidate an artist working by him or herself, but there is something you should know: I’ve asked every dinosaur artist I contacted while researching this book, and no one has ever lost a job because they wouldn’t accept the terms of the original contract offered them! In fact, one artist was so insulted by a contract, that he packaged it up along with an angry letter, telling the potential client never to darken his door again, and he still got the job, but on his own terms. So don’t be afraid to stand up for your rights for fear that if you don’t accept whatever you’re given, you won’t get the job, and the client will just go to another dinosaur artist who will. There is no evidence that this ever happens. For whatever reason, if a client has sent you the contract, and you’re available to do the work, the job is yours, so long as you are willing to re-negotiate reasonable terms in a timely fashion. And I hope this manual can help with that.
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