A simple agreement starts out by identifying who the parties are who are doing the agreeing, what business they’re in, and where they’re located.
Sometimes, next there comes a section under a heading title, background, which describes in general terms the transaction which is to be entered into by the parties in the
agreement. It is important to note that the BACKGROUND is just that, a background, and is not the operative part of the document. All operative provisions of an agreement
(including reimbursement or payment for any work done before the agreement is signed) should be stated in the AGREEMENT section described below. The BACKGROUND section,
however can be used to recite an ongoing undocumented understanding or relationship between the parties prior to the agreement, in situations where this applies.
(For example, you’ve been working with this company for years on nothing more than a handshake, but now they’re being sold and you want everything in writing, but you don’t want it to seem like you are a new vendor - you might want to put your longstanding freelance position with this client in the BACKGROUND section. Or, in a situation where you have already completed a number of interviews and/or sketches to get this job, and while you do not expect payment, you would like the document to accord you “moral credit“ for this unpaid work, an appropriate reference may be placed into the BACKGROUND section.)
After the agreement has defined the parties agreeing, and included any background information, if necessary, comes the body of the agreement, often under the
heading title, AGREEMENT, which should state clearly all the points being agreed to.
(And we will discuss later in this book certain issues or points that should be addressed or considered in different individual instances later in this book.)
For the protection of both parties, any agreement or contract should contain a provision, known as an “integration clause”, which states that the agreement is the only agreement between the parties with respect to the matters the agreement covers, and that the agreement may only be amended in writing. This is important so that one party doesn’t come back later and say “Yes, but in a telephone conversation we changed that bit, we just didn’t put it into the document.” While oral undertakings can have the force of contracts, courts generally do not recognize claims of oral amendments to written contracts which contain an integration clause.
Another contract provision which the artist may wish to consider is a “choice of law” provision, which designates the state whose laws are to govern the interpretation of a contract, and may even go so far as to state that any lawsuits concerning the Agreement must be brought in that state. An artist living in Nebraska taking an assignment from a New York publishing house obviously has an interest in having the publisher come to Nebraska if there is a dispute rather than facing the prospect of “long-range litigation” in New York. Unfortunately, most publishers and other sophisticated buyers of art are aware of this issue, and commonly the artist will be presented with a contract which designates the buyer’s state as the governing law and the venue in which lawsuits must be brought.
Then there is a closing and signature section which should mention that the parties intend to be legally bound by the agreement, and voila! you’ve got a basic agreement. The sample following the next page shows you the form.
There is no reason for any contract not to be a simple and comprehensible, and I know I don’t have to tell you not to sign anything you don’t understand. But any agreement you write, and any agreement you sign, should be simple and to the point. (If you’re not comfortable with writing “whereofs” or “heretos”, don’t use them - I do because they specify time and place to me, and I’m fine with how they sound, but you can just use ordinary English as long as you’re not ambiguous about what you’re saying in any contract you write.) As discussed above, however, in many instances legal counsel may be useful, if only to ensure that provisions of a contract mean what the artist wants them to mean, as well as to assist the artist in identifying all of the relevant issues.
And as far as contracts presented to you for signature; beware of them if they’re too long. (We did an entire museum exhibit agreement, media specs to blueprint of murals and all graphics, payment schedules, appendices, indemnifications, etc. in nine pages. One or two pages is all you need for most jobs, any longer and I become suspicious, and so, perhaps, should you.) Don’t be ruled by, but also don’t ignore your gut reaction. An extremely elegant lawyer I know put it very succinctly, I think, when he told me:
“You know, it’s funny, but a contract that is going to screw you sort of looks like a contract that is going to screw you.”
A good observation and I want to take this opportunity to mention that you can get contract assistance from the Volunteer Lawyers for the Arts. These groups are now in most cities across the country. The lawyers work on a sliding scale and provide free legal help for artists below a certain income level. They can also help with information about state laws which may affect you. To get in touch with the nearest branch to you contact:
Volunteer Lawyers for the Arts
1285 Avenue of the Americas
New York, NY 10019