What It Takes

What It Takes

Protect Yourself: The Contract

By Callie Oettinger | Published: April 24, 2015

Would you do this without a net? Photo credit: George E. Curtis image of Maria Spelterini crossing Niagara Falls. Source: Wikipedia.

Working without a contract is like walking a tightrope without a net. Doable, but risky—with the potential to do real harm if you slip (depending on the height at which you’re walking and the conditions awaiting below).

Working with a contract you don’t understand is just as risky. There’s an ever-growing list of bankrupt artists with wealthy publishing/recording/etc houses, of artists who have lost ownership of their work because they didn’t understand what they were signing, or who went unpaid because their contract didn’t protect them/their work.

For the above reasons, my advice to young artists, particularly those slogging through BFA’s/MFA’s, is to balance their art courses with business and law classes—and if they’re not in school, pick up a few books.

This side of the creative coin is the one that often sends artists into hiding, but the reality is that even if you have someone who can handle legal/business for you, you’re putting yourself at risk by not learning the basics. Would you know if you were receiving a fair shake? Or how to protect your work?

When I opened my own shop almost 15 years ago, one of my first investments was in a contract. Hands-down, its provided the greatest return to date. I wanted something that was fair for my clients, but also something that would protect me/my work. Based on experiences with previous staff jobs, the items at the top of my contract list were:

• Signing Fee
• Kill Fee
• The Unexpected
• The Rights

Signing Fee
The signing fee is an advance toward the first portion of your work and often a litmus test to gauge how clients will/will not pay in the future. If the client won’t make the signing payment on the day the contract is signed, experience dictates that the client will be late, try to renegotiate mid-contract, or fail to make future payments.

If a potential client doesn’t have the funds to get going, take it as a sign that funding will be a future issue.

Kill Fee
About ten years ago, I was a few months into a multi-book contract with a publishing house—almost complete with the first few books—when I learned that the last one would be cancelled. The publisher wanted to cancel without payment, thinking that ok as he’d already paid a portion of the contract.

I expected to be working on the final book during the upcoming timeframe and didn’t have other work coming in to fill the void the cancellation created.

Just as a doctor might charge you for missing an appointment—or failing to reschedule at least 24 hrs in advance—the fee for my reserved time is covered if clients cancel or delay a project.

Things happen (See “The Unexpected” below), so I try to remain flexible, but there are times when clients have known projects were going south and waited until the last minute to make a decision—or something else has occurred, when flexibility wasn’t an option.

The Unexpected
About a year after my first child was born, my husband and I took off on a week vacation, leaving the baby at home with my parents. Within a day of our return home (and my parents’ departure), our son became violently ill. After being hospitalized, he was diagnosed with Rotavirus. We spent the next ten days in and out of the hospital, or sitting at home spooning liquids into his mouth.

Pairing his illness with being away on vacation, I spent almost three weeks doing very little work on a contract I’d signed prior to that vacation week.

Under the contract, I was protected by the Force Majeure clause, but in the end was able to delay, rather than cancel. The client was flexible, understanding that “things happen.”

The Rights

As I sat with an author, during a meeting with a non-profit press, I listened to the press’ lawyer say that it registered the copyright for all books it published in its name. I was there as a publicist, not a lawyer, and this was early in my career, so I sat silent, thinking about what to do.

After the meeting, I asked the author to contact his own lawyer about the copyright. As is often the case, books are copyrighted under the name of the author (or a business set up by the author), and then the publishing house buys the rights to publish the book.

The editor at the publishing house had garnered the trust of the author, but its lawyer did not have the author’s best interest in mind.

The author came close to signing away his book to someone else because he didn’t know common practice—and because I was still nervous about speaking out within an arena in which I didn’t specialize. It was one of those early moments, when I knew it was time to move beyond the BFA in writing and look into the MBA skillset.

The copyright is different in work for hire pieces, which the book in the above was not. In work for fire, the client owns the art, not the artist. Think Sistine Chapel. Michelangelo painted the famous ceiling, but he didn’t own the work. Vatican claims that one.

Bottom Line
If you’re going to go down the Internet rabbit hole, pick a hole dug by lawyers and/or MBAs. The Small Business Administration is a great online resource. Check out your local State’s agencies, too.

When I went to incorporate years ago, I was faced with a $700+ fee from a lawyer who said he’d take care of my incorporation paperwork. After a little research, I ended up on the phone with a state agency rep who kindly walked me through the process of incorporation, telling me where to find the paperwork needed and how to fill it out. I probably spent more than $700 worth of my own time, but it was a valuable experience. Just like practicing writing or painting, or whatever your art is, every day, reading contracts and digging into the business side a little every day makes doing the same in the days to follow much easier.

Before others can be advocates for you, you have to be an advocate for yourself.

Posted in What It Takes

9 Responses to “Protect Yourself: The Contract”

  1. April 24, 2015 at 6:57 am

    So true, so true….my general stance is if someone can’t explain in plain English (my primary language) what the contract language means –and if they say trust me…red flags, whistles, stomach churning and my ears start to burn–this is a sign. I also think having lots of time between reviewing the contract and signing it, in many places, is dictated by law as well. Really great article and reminder, thank you.

  2. Mary Doyle
    April 24, 2015 at 7:24 am

    Excellent advice Callie! A small book some might find helpful as a starting point if this is foreign territory is “Protect Your Writings: A Legal Guide for Authors” by Maria Crimi Speth. Thanks for the valuable reminder!

  3. April 24, 2015 at 8:08 am

    Callie: A while back you approved sharing my business with your audience. I posted once or twice but wanting to be more creative in approaching you, I dropped the ball.

    Yes contracts are very important in all areas four lives. Most of us will sign a car contract, mortgage contracts service contracts and never consult with an attorney. In CA we save car buyers an average $400 dollars.

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  4. April 24, 2015 at 8:42 am

    This is extremely valuable information for artists. It brings to mind a post you wrote a while back about Dolly Parton, where she said that in show business, artists need to “go heavy on the business side.” She referred to it as “horse sense,” which in her case meant holding on to the publishing rights of her song, “I Will Always Love You,” (despite being lured to let them go in exchange for Elvis Presley recording the song). Decades later, the song became a monster hit for Whitney Houston. To this day Dolly Parton still collects the royalties. Imagine how she would have felt if she did not “protect” herself. Thanks Callie, for sharing your excellent advice.

  5. BING
    April 24, 2015 at 12:08 pm

    Thank you Callie for all your research and
    hard work about these topics. I learned alot
    and hope I can pass this info on to my friends.
    Shalom – BING

  6. Stacy
    April 24, 2015 at 3:19 pm

    This comes at a prescient time. Just cracked open AUTHOR LAW A-Z: A DESKTOP GUIDE TO WRITERS’ RIGHTS AND RESPONSIBILITIES this morning.

  7. April 24, 2015 at 3:21 pm

    Callie – As always, great article. While the contracts I have dealt with haven’t been writing based, your advice holds true. Learning to understand the legal elements of work I was doing ultimately allowed me to become more comfortable ensuring the difficult issues were dealt with up front and at the beginning. And without the stress of the uncertainty weighing on me, I was able to get to the fun and creative parts of the work more quickly.

  8. Stacy
    April 24, 2015 at 3:31 pm

    Artists could also google whether there are creative rights organizations in their city. Often smaller towns and rural areas don’t have them, but most major cities do, and sometimes those organizations will extend their resources throughout the state.

    Hope you don’t mind my posting the link, but I just found what looks like a pretty good resource to bookmark: http://www.vlany.org/resources/vladirectory.php

    Seems legit–it lists Chicago’s Lawyers for the Creative Arts (the LCA), which is a bona fide organization. (I’ve used their services.) Also has a couple of international rights’ organizations listed, for Australia and Canada.

  9. April 25, 2015 at 9:26 pm

    I heard a story that The Romantics unwittingly gave away the rights to the song, “That’s What I Like About You.” Just about every company in the world used that as a theme song and the company that bought the song made a lot while they mad nothing.