We believe that when you start a business, there is a tool-box of people you should have available to you. (Ok, some people just call them consultants.) A lawyer is a key member of the consultant-team you should build for yourself, and you shouldn’t just wait until you’re in the middle of a legal bind to find one. Jordan Nahmias is a Toronto-based business, media and entertainment lawyer, and he was kind enough to sit down with me to answer some of your questions. (Please note that, though hopefully helpful, nothing in this article is legal advice.)
Knock Twice: When should someone hire a lawyer?
Jordan Nahmias: To run a business properly, you want to be sure you’re doing things on the up and up. If you’re entering into contracts with people, you need to make sure those contracts are binding and protect your interests. You also need to make sure that you’re legal from a tax perspective, which is why you should have a bookkeeper and accountant. 99% of what’s going to be happening is you’re either going to enter a commercial agreement to produce, like a commission, or you’re going to be licensing. As soon as somebody says “I like your work, I want to use it”, you have some legal things to consider going forward.
KT: What are those issues?
JN: The first thing we need to do is look at what your work is, we need to see what rights you have in your work. Copyright exists almost automatically. If you’re commissioned to produce a photograph, the rights automatically vest in the commissioner, not the artist, absent an agreement to the contrary.
KT: Sorry, can you make that a little clearer?
JN: Let’s say I call you and want you to shoot my house. I’m commissioning you to do the work. Unless there’s something in the contract that says you retain the moral rights, the copyrights, and all other intellectual property in the work, then I get that right. It automatically goes to me.
KT: How would one go about hiring a lawyer?
JN: First, try to identify what your issues actually are – what are you doing, what do you need help with – then you may want to figure out what your budget is for legal assistance. Fees generally work hourly. I hesitate to give any specific numbers because it always depends. Depending on the level of the transaction, and what’s at stake, it’s worth it. Generally speaking, you will also need to retain a lawyer, which means that you need to pay something up front. The retainer is essentially a deposit against future fees. Once the retainer is exhausted, I advise my clients what the estimated additional cost will be if they want to proceed, and they then have the option to “top up” their retainer going forward.
KT: So one of your functions is to help clients write contracts?
JN: Yes. Artists who are licensing work, selling the rights to work or being commissioned should always have an agreement in place between themselves and their clients. This does two things: It’s going to protect you. The other thing is that when you present yourself as an artist or creative professional with your own agreements, you look way more organized. It gives you credibility, and it’s more likely that you’ll know what you need.
It’s a matter of creative professionals being aware of what’s at stake, and the rights that are in works, which can very easily be lost or transferred unless you’re paying attention. So that’s why I say any time you have a piece or creation that is going to be used by someone else, you need to be very careful about what the rights are in the work, and what rights are going to be transferred.
A lot of the time the best way to do it is through a license. You retain all of the rights in work, but you give them a license to use it, for certain purposes, for a certain fee. The license doesn’t grant them rights in the work, it grants them a right to use the work.
Contracts and licenses are most of what I do. It’s commercial, but art’s a business like any other business. Artist’s hate hearing this. But look at some of the most successful artists in the world. Look at Damien Hirst. He is running a business like no other. It has a lot to do with the art, but underneath that creative thing, he’s got consultants. He’s treating it as a business. It doesn’t mean that the creative process isn’t a part of it, it means you have to understand that if you want to make your living through art, then you need to understand that you’re making your living through art, not making art for a living. Making a living through art makes you understand that the art is what’s supplying you with your income, and you need to treat that art as a business.
The worst scenario, which happens all too frequently, is that artist will forfeit their rights to something, or make a donation, or give it away, and then…boom: that piece ends up being worth so much, or someone profits on it and they have no recourse because they haven’t taken the necessary steps in advance to ensure that they’re protected, and the reason that is is they haven’t treated it as a business. They haven’t acknowledged the fact that there is value in what they’re doing, there are legal issues that come up, and all these things need to be addressed in the course of making a living through art.
KT: What kind of recourse do you have if you’ve posted your image on your website, with a note saying all images copyright …your name. Then you find your image on someone else’s site without credit?
JN: The first thing I would say is send them an email and ask them to take it down. Then you can follow up with a cease and desist letter. My advice is to always be nice first, because unfortunately, as soon as you get a lawyer involved, the discussion will take on a different tone. Hypothetically, you can sue for copyright violation, for lost profits, etc….there are all sorts of heads you can file claims under. But always try to ask nicely first.
KT: What recourse do you have if you have not been paid, but you don’t have a contract in place?
JN: Small claims court is up to $25,000, and there are people who show up without contracts. Just because there’s no paper doesn’t mean that there’s no contract. If someone said they’re going to pay you and they don’t pay you go through your phone records, your voicemail, your emails, look for correspondence and find evidence that says they were going to pay you. Then you’d have to go to your lawyer with the problem, and the lawyer will tell you what the next step should be.
KT: Obviously contracts are very important, to have your terms defined, etc, but if you had to boil it down to one element, what is the most important thing to put in a contract?
KT: What are some steps artists can take to cover their bases?
JN: Waivers and releases, always. Property releases, model releases. Assuming there’s copyright in your work, then you put up a copyright notice on your page. Keep in mind that just because you say copyright, doesn’t mean copyright exists, in the same way that even if you don’t put copyright notices, the copyright is still there.
KT: What piece of advice would you give emerging creative professionals?
JN: Be serious. Take yourself seriously, take your work seriously. Be serious about what you’re doing; you’ll have more respect for what you do, and other people will have more respect for what you do. And out of respect will come the ease through which you will profit and progress and grow as an artist, as a professional, and as a business person.
Image Credit: Erika Jacobs