ART & the LAW. A word from the wise.

"When Law Dulls the Edge of Chance," by C. M. Russell

Howdy fellow artist. Perhaps you found this blog because you are having some questions about the art business. I am no attorney, and no expert on the LAW, but I do have forty years of experience in the art business, as an artist. And I can sum it all up in one word. BEWARE.

But it is not the law that is your enemy. When it comes to commissions, publications, representation, public interviews… BEWARE! Although the laws supposedly protect you, they only work if you first protect yourself.

Beware of contracts.  Whenever somebody sticks one of these between you and a so-called opportunity, pay close attention to it. They are not all bad, but there are a lot of bad ones and they can really put you in a world of hurt.  Most contracts are written by corporate attorneys whose job it is to put everything in the corporation’s favor. They are very professional and RUTHLESS. They write each contract as if it will be read and negotiated by an equal, and more tellingly, by an adversary. The minute you hold that contract, you are in over your head.

Beware of “handshake deals.”  While it is true that these are far more comfortable, and thus attractive, they can be much worse because of what was not said before the handshake. The best solution is to hear out a proposal and then write down your interpretation of it, including many of your assumptions about what you think was implied, and verify these impressions with your client. The back and forth dialogue will be healthy and revealing. Then shake hands-  and may God be with you.

Beware of wonderful deals, “big opportunities” and apparent windfalls. They hardly ever are. Publishers will promise to make you famous, knowing you will receive proportionally and embarrassingly very little for the art they publish. Charity auctions solicit donated art for popular causes, offering you huge “exposure.” They are unaware that your donation is not even tax deductible, (except for the cost of materials) and that few artists ever hear from anyone “exposed" to their art at the auction. Galleries may promise to put your work in the window, and talk it up, but soon grow bored and adopt a new flavor of the day. If you stay away for awhile, and return unexpectedly, you might find your work out of sight and in storage.

Beware of galleries. Especially new ones.  Most will be out of business in a few years or less. And when they go, they often take your work with them. People closing a business or mired in financial trouble do not have time to worry about you. Easy come, easy go. Watch your galleries closely at first to know their business ethics, their prospects for survival, and what to expect out of them.  Many art galleries start out as a second business for a wealthy couple looking for “something fun to do.” They might also need a tax write-off and not necessarily care about profitability. They love the atmosphere and the glamour and often underestimate their responsibility to earn their commissions. And they often forget to send you your money. They do not set out to be crooks, but few galleries are run by responsible, business-minded individuals. Many art galleries are going out of business these days... only a few will be missed.

Think about it, what other kind of store can you open and not have any previous experience and not have to invest in a single bit of inventory? This only helps to produce a cavalier attitude.  Selling art is serious business. It is about one third public relations, one third retail cunning and one third dogged resourcefulness. Most galleries have only one of these, if any.

Beware of yourself, as you are the only defender you have. The bottom line is that little has changed since the early 1900’s, when musicians sold their songs for a few bucks and forsook all deserved royalties and never lived to see any appreciable wealth earned from their intellectual property. And why?  Because they just handed it over. They trusted "the man."  And artists today are being asked, even required by egregious contracts to do this very thing.  So Beware of your own humility and magnanimity. Artists often undervalue their talent and what it can do, and more importantly, what it and their products are worth.

Sometimes (often!) artists get financially desperate and from a position of weakness, make strategic compromises. But almost every deal that comes along has unseen pitfalls, and often your compromise turns into bitter regret.  If you are going to manage yourself, you have to lose several things: Quick decisions, benefit of the doubt, trust in mankind, and unwillingness to take responsibility. You cannot ignore these things and "just make art." Make yourself read and scrutinize the fine print.  Yes you are an artist… but you are also in business! And that means you are supposed to survive and show a profit. No more Mr. Nice Guy.

Beware of smiling, well-intended benefactors. Promoters often start out praising you and smiling big while they think ahead, begging for slack and special treatment, with promises of worthy returns down the road. Their visions usually never materialize. The life of an artist is tough and unpredictable. You are destined to pay plenty of dues without someone asking you to. As an old mentor of mine once told me, “your knowledge is your stock and trade!” I cannot, and you cannot afford to give your knowledge, your products, and especially your royalties away, or sell them cheap. Things are tough enough for an artist anyway. When a deal is offered that has some thorns on the rose… Understand that with every opportunity, you will have to pay for it in some way. Watch for those thorns! For instance:

A land developer might appreciate an artist’s touch and ask you to design or even develop marketing materials, even amenities to sell his vision- which may be a delusion, using your talent as a cloak to cover his poor business plan. I have been through this a couple of times. A bad or suspicious business plan almost guarantees you will be the first casualty!

A business might ask you to design a billboard- advertising something you find objectionable, even immoral. You might be asked to paint something that would bother your peace of mind. Be careful what you agree to without sufficient background details.

An art studio might ask you to teach art lessons- and require you to provide valuable additional art for teaching materials, on the side for cheap-  if you want the job. This is the latest "get rich off of trusting artists" scheme.

A gallery might ask you to consign your work- and demand as much as 60% commission- and pay you on a 90 day cycle. A lot can happen in 90 days.

A popular annual charity auction might ask for free art to sell, to raise money and provide you “advertising”- year after year. And never even give you a chair at their banquet!

An author or publisher might ask you to provide illustrations for a magazine or a book, or a website- or to make reproductions of your works to sell and offer you a very small percentage- or nothing except good public relations!

A school or museum might ask you to paint murals in its halls- but require you to sign a burdensome contract.

All of these things have happened to me. Each opportunity had some critical issues, some of them legal, which could affect me and my future. I’m sure you can learn from my experiences.

The failure to plan is just a plan to fail. Know what your personal and professional policies are and stick to them. I have wasted a great deal of my life giving some moron the “benefit of the doubt,” against my better judgment, only to regret it… and I have paid for it. Most of the time I failed to plan for such “opportunities” and tried to wing it without legal counsel. I could write a book about my failures, especially on the business end!

You may not need to run out and hire a lawyer yet, but you need to be ready for these and other traps in the art business minefield. I’m going to share a few stories that will help illustrate the need for you to be ready to protect yourself. And I will give you some hints about when it is time to put your dukes up. Because after that, you are on your own. 

You need to know right now, as best as I can tell, we are headed into a veritable dark age when it comes to art and the art business and our cultural environment. It is getting very litigious and hostile. Lawyers will soon run the Universe. And most of them do not have a conscience. And everyone you will be working for has the pockets to afford these hired guns that make a living scheming your disadvantage.

So you are broke and you need a gig and somebody approaches you with what sounds like a real career boost. You are willing to almost agree to anything to get a paying job, to get your work out there… What should you do if they hand you a contract and ask you to sign it and “get on with it…”?

We’ll talk about that next time. If this is information you need, from another artist’s perspective, please leave a note and let me know your specific concerns. I want to encourage and warn you at the same time!

Next time…