When to See An Art Attorney

Any artist who enters into business relationships to show, sell, commission, or reproduce their art is likely to benefit from occasionally meeting with an art attorney. The preferred way to meet is before you formalize contracts, agreements, sign dotted lines, or shake hands. The far less preferred way, regardless of circumstances, is to wait until after a relationship has begun.

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, or attend workshops on legal issues for artists. Use these experiences to firm up your sense of where you're going with your art career and what you want to do with your art, and get an idea of what legal precautions you'll have to take along the way. Keep in mind that books, articles, workshops, and conversations with other artists are not meant to substitute for actually meeting with attorneys, but they certainly help you figure out what to say once you get there.

The best time to see an attorney is when you have a contract in hand, but BEFORE you sign it. At this point, you have no dispute, no obligation, and nothing at stake. An advance meeting is strongly recommended when you're just starting out, are inexperienced at contract negotiation, have little or no business experience, or do not understand specific clauses or language in a contract. An attorney can review your contract or agreement, point out 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.

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 California Lawyers for the Arts (similar services operate in all parts of the country), 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 costs well under $100.

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 contracts, or are an experienced artist well along in your career. 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 when 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, to present to the other party. If you're a more experienced artist, and you've done similar deals before, then an attorney may not be necessary. But if any aspects of the arrangement are unique, different, or new, then having an attorney go over 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 for potential problems.

When an arrangement begins to break down or get difficult, do whatever you can to settle the differences on your own. 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 consulting one in the private sector.

Use the lawyer as a sounding board to talk things through and explore peaceful solutions to the problem. Don't ask the attorney to demand payment, the return of your art, or to send a letter or make a phone call right off the top. Get options. The lawyer may know ways to defuse and resolve the situation.

Go slow, be patient, and most importantly, dissipate your anger or frustration. 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 as that can be extremely expensive, exhausting, and a monumental waste of time.

No matter how unpleasant your situation is or how badly you want to take action, or have the attorney take action for you, DON'T. The biggest mistake you can make is to get too aggressive too fast, and act based on anger and emotion, not calm and reason. DO NOT write a threatening lawyer-like letter, have a lawyer 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 this is not a threat, but rather a reaching out on your part to make things better. A mediator's job is to be neutral and to settle problems equitably. If 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 good and bad sides of your case, what you have to lose, and 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. Be warned, though, that the more you learn about how the law works, the better you understand that you almost always lose if you go to court, how expensive litigation is, and how little satisfaction you get in the end. Vengeance is not cost effective.

Instead, view disagreements as great educational experiences. Confront and work through problems the best ways you know how (with assistance when necessary), and use the resulting lessons to become a more savvy artist and businessperson. You learn plenty about the individual on the other side, and about human nature in general, as a disagreement progresses.

Conflict is a growth opportunity; it's not a bad thing. How you approach and deal with conflict is what may or may not be a bad thing. So make conflict a learning adventure rather than an adversarial one. 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.