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!