Part II Art and the Law: RESIST TEMPTATION!

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…”?

I’m going to answer this question indirectly by sharing some of my experiences with my own art project contracts. My brother Ralph is an attorney and taught me a long time ago to treat contracts very seriously. He impressed on me the basic truth that lawyers design contracts for their clients to protect them and their interests, even to give them the legal edge, and they have no intention of designing anything remotely fair.  These contracts are inherently skewed in the favor of the employer, and after paying for their services, companies are not likely to ignore the “best counsel” from their own attorneys... So often the result is a stalemate.

Still, contracts are often the necessary step to commence with projects for design consultants, general contractors or architects. And they can get pretty adversarial. The State jobs will always have a contract requiring bonding and a certain amount of liability insurance.  And nowadays schools will require a contract that requires a criminal background check and total access to all your files, equipment and computers.

My first contract wrangle was a doozy, and worth telling for what you can learn.

I won a bid to create a sizable amount of art inside a school, ($12,000.00 worth of murals and sculptures) and although endorsed by the architect, I technically was going to be hired and paid by the general contractor. The contractor, who I will call Dime Construction, told me to come pick up the contract and review it, and I elected not to sign it immediately, and instead chose to look it over during the weekend.

It just so happened to my great advantage my brother from Alaska, an attorney, was in Texas and we were able to go over it. After reading it he stated flatly, “If you sign that, I’ll never speak to you again.” Assuming he was kidding, I laughed and said that I was probably going to sign it in some form because I needed the job. I needed the business! I’ll never forget what he said…

“You may need business, but you don’t need THAT kind of business.” I began to realize he was dead serious. “Can you afford to do all of that and not get paid? Because that could happen with this contract.” Now he had my attention.

“If their forklift runs into your mural and destroys it, can you afford to do it over and not be compensated?

If their forklift runs over your palette knife, and somehow disables it, can you afford to fix the forklift?  

If they for some reason do not get paid by the ISD, they don’t have to pay their subs… can you afford not to get paid?

If they for some reason are not pleased with your work, they don’t have to pay you… Can you afford to spend months, and thousands on payroll and materials, and not be compensated?

Can you afford to work for free?”

“Uh… no.”

“Well that’s what this contract says! If you sign this I can’t help you… You do not need this kind of job… you may need work, but you don’t need a job that could bankrupt you.”

He was right of course and we red-lined the stuff I could not abide by and I submitted the amended contract to Dime that next Monday. In no time Dime Construction contacted me and said thank you very much but I would not be getting the job. End of conversation.

Welcome to the game of business hardball!  A couple of days later the architect, thoroughly disappointed, asked what had happened. He wanted me to do this job. After hearing my explanation, he arranged for me to work directly for the ISD. I went to see the Assistant Superintendent and we had a nice visit… Everything was great until I told him I would need a deposit to buy materials and make payroll for my sub-contractors.  He shrugged that off, as it was against district policy. End of conversation. I shrugged it off too, as by now I was fed up with the striving required in the “big leagues.”

Then the architect called me again, incredulous. Finally, thankfully, he agreed to hire me and pay me and get reimbursement. That was how I got my first major contract, and this story has a moral: Dime Construction failed to meet deadlines and standards on this project and did not get paid, and went under. Had I signed that contract, I might never have been paid. It would have been a debacle.

Now fast forward sixteen years… Recently I was invited back to the same school to do my third extra mural since that job. They love me and I got the bid and hired a helper and purchased materials. Then I got an email from my friend, the principal, to hold everything …

It turns out the State of Texas now requires that every ISD contractor with direct exposure to schoolchildren has to submit to a criminal background check (absolutely fine with me) as well as his employees (OK).  AND he must pay to join a criminal background checking service (not so happy, but OK)  AND agree that the State inspectors, for any reason, at any time can demand access to and total  disclosure of all of a contractor's files, papers, computers, equipment and anything connected to his business. Since I office in my home, this would include my home.  Hmmmmmm. Not only that, but this process of just getting cleared to execute the contract can take several months, or longer to complete! I would not be able to complete the job in the time window I promised.

So my twenty year career as a school muralist came to an unceremonious end.

Contracts.  Gotta have ‘em! But more and more the legal eagles are tightening the screws on their perceived adversaries. And they have become greedy bullies in the process…

Even more recently I agreed to lead painting sessions at a national chain franchise “paint & sip” studio, the going thing these days. It’s getting to where folks are only curious about their talent if it involves drinking wine… anyway I jumped through all the hoops until finally I was handed a contract. Which I knew by now,  I had better take it with me, sit down in a quiet place, while very sober and consider it. But how contentious could this fun and light-hearted kind of place be?

The studio required that the teachers do all the preparatory set up and after-class clean up, but the artists would only be paid for the hours of instruction (2@ $20.00 hr). They were required to provide availability schedules, but were not promised any particular set number of hours of work. The artists are required to provide, for a measly $40.00, one completed painting per month to be used as a model for future sessions. No royalties will be paid, not even credit for doing them. Forever.  And here was the kicker… The artist leader that meets these expectations joyfully gets to lead more sipping sessions…  But can you imagine what this company could make off of one talented moron who willingly submits to this conscription, over the next decade?

That will not be me. I let them know as nicely as I could that this contract was very objectionable to me. As somewhat of a leader in the arts in my community, I have an obligation not to appear to endorse the wholesale, corporate violation of artist’s copyrights and intellectual property. 

So by now you can see the trend. We are screwed. Corporate America and the government have teamed up to rob us of our privacy, our earnings, and even our just residuals. So you need to define your limits and brace yourself.

I am old school, and I cannot make the turn. And I pity the next generation who has to fight this fight, for the rights our forefathers fought for and established long ago. But there is a real fight ahead for artists to maintain the respect, incomes and professional leverage they have enjoyed.

God Bless, and let me know how you do!

A PEP TALK

A young artist asked me if there was any kind of transaction that was a positive experience for both artist and collector… and there are a few.

Unfortunately the old -fashioned community art festivals have all but disappeared, but they were great venues to meet with your patrons and enjoy direct and exciting exchange between the art makers and the art buyers. But the fact is they have faded into the past because sales became weak as American lifestyles and priorities have changed. It was a big effort to arrange and produce such events, and the enthusiasm around the art shows went the way of the profits made having them.

Living in a small town, I have enjoyed great rewards by the interaction between myself and my local collectors, and to some degree the general public, who seem to appreciate the public art I have done. It was a long time coming.. but ever more appreciated by me. A few days ago one of my out-of-state collectors blew through town and hunted me down and purchased a painting at my hometown gallery… everybody gets a bang out of that.

And this brings me to something I have never had personally but always thought was the most desirable- to live in an art town such as Santa Fe where those kinds of exchanges can happen every week. And that is why so many artists move to such places. The down side is they are often situated in high-end Real Estate areas and require a very high cost of living… Right now lots of artists are giving up on such idealistic arrangements and seeking affordable lifestyles instead…

Art is nothing if it s not hope. It is often an escape from stress and the pressures of the world. It stimulates hope and optimism and creativity, in an envelope of euphoria. And folks who appreciate or are attracted to art and artists tend to be wealthy, slightly narcissistic, kind of flighty and sometimes get carried away in everyday conversations.  That is the fun and the burden of such company.  90% of conversations are just stream of conscious wishing out loud. Brainstorms. Artists must condition themselves to enjoy the banter, while keeping their own feet on solid ground.

And these days while shoppers are getting scarce, don’t get discouraged by meaningless discussion. It’s part of the business. And eventually, if you maintain your positive spirit, some of it will bear fruit.

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…