Free Legal Advice For Artists
Written by Joshua Wattles
Scott “Sourdough” Power who runs this place asked me to write an article because he wants to give you people some free legal advice and I am a lawyer. But I know that people in the creative class don’t usually take advice from lawyers even when it’s free because it’s going to be limiting and cautious. More to the point, artists in a place called Not Real Art will be less likely to accept real law. There’s a bigger issue with Scott’s idea. A real lawyer doesn’t give free advice, or any advice, unless it’s to a client. There are real laws that say that.
I can tell you how to do some things: I thought something practical like how to copyright your stuff. So I went to the copyright office website. They have these videos with instructions on how to fill out some of their forms if you decide to register. I fell asleep during the first one and it was only 2:30 in the afternoon – – really challenging and compelling content.
Copyright law is the foundation for the protection of the arts in all its forms so you might think they could attract De Niro and Margret Cho to narrate with maybe Spike Lee directing on a script from Arron Sorkin produced by Tyler Perry with maybe a catchy intro theme by Lady Gaga. Nope.
The materials at Copyright.gov are very dry. But they are also pretty easy to understand. So if you want to know how to register for a copyright on whatever you have made, go there for the answers instead of some article from a random Google search that might tell you to register your paintings as photographs to take advantage of bulk registration fees. (That would protect the photographs of the paintings but not the paintings themselves. The copy of the painting you will provide at registration will be a photo but please register the painting as a painting.) Like most of the bureaucratic things artists as business people need to do, getting a copyright registration is going to be a drag compared to firing up the boom lift and spraying a wall.
If you want some background on how and why and how far you can protect your art, I produced a guide on that for DeviantArt where, as its lawyer for 18 years, I held the distinction of representing the interests of more visual artists than any person alive: over 50 million of you. https://www.deviantart.com/protectart/journal/The-Art-Theft-Discussion-544490149 There are even some cool illustrations that prove the point the Copyright Office missed: hire a good artist and they can even dress up the driest content.
Hacking the Law
Lots of artists ask me for advice and it is rarely for the advice they actually need. Sometimes it’s for advice on how to hack the law, particularly criminal laws that can impact street artists. Real lawyers can’t give you advice on how to break the law. I can recommend that if you are concerned about engaging in unlawful behavior, find a good local criminal lawyer, get his or her card and carry it with you at all times. I did that as soon as my fist son turned thirteen.
The most important legal concepts, other than copyright, to learn as a working artist are contracts and partnerships.
You probably know that if you have a written agreement you might hire a lawyer to help out if there’s a problem. If you can afford it or if the payment on the project is big enough, you might even hire a lawyer to look over the contract before you sign it. But most artist just sign whatever is put in front of them. I can suggest that you should at least read it first because you’ll probably catch some issues with it, but most artists don’t even do that. One of the things we’ve all learned from the Internet and technology is not to bother reading the Terms and Conditions. Just click through.
No clicks are required to make a binding contract. Contracts don’t have to be written down. And that’s where many artists and business people get tripped up. In most cases, oral agreements without any writing are enforceable contracts – – as in you can get sued over it or you can sue to enforce one. How do you make an oral agreement? Simple, you agree in a conversation or series of conversations to do something in return for something and both sides know the what, where, how and when of the arrangement. That’s all it takes, assuming you can prove it. It is best to write something down. I once interpreted a two sentence “contract” written on a cocktail napkin in Cannes during the film festival by two business guys. It was much better than relying on their cocktail blurred memories.
The instruction on partnerships is also simple. Never use the word “partnership” or “my partner” unless you really mean it as a legal matter. Saying that word even socially in a business context can create a real partnership. A real partnership without a specific agreement to the contrary is usually considered by courts to create two kinds of very scary things if you didn’t mean them: (1) the split of any profits is going to be 50/50 and (2) what one “partner” agrees to do will also become the responsibility of the other partner – – not equally, but completely if the partner who agreed to it bails.
The final bit of help I can give is this: pay your taxes. It’s a shit storm down the road if you don’t.