Working as a visual artist is about so much more than just creating. Artists must also work on cultivating professional relationships, research where to exhibit and sell their pieces – and then, of course, there are legal matters to consider. How do artists ensure they will be compensated fairly for their work? What happens if one party doesn’t hold up their end of the bargain? And what recourse is available to an artist who is caught in a contract dispute?
Lindsey Wareham of Cox & Palmer will lead a free roundtable session regarding contract law, specifically geared towards visual artists, on February 7 at the Neal Building on Harbour Drive in St. John’s. She recently chatted with Business & Arts NL about contracts, copyright and the importance of protecting your creations.
Business & Arts NL: Concerning legal contracts – are there certain things that visual artists need to be aware of/concerned about, that other types of artists (musicians, for example) do not?
Lindsey Wareham: Yes. Any contract involving visual artists should clearly address copyright and any related rights found in the Copyright Act (Canada). The term “copyright” refers to more than just the right to copy or reproduce a work. The term also includes a bundle of other related rights, some of which are particularly relevant for visual artists. For example, copyright encompasses the right to display a work publically. Visual artists should also note that under the Copyright Act, they are entitled to royalties when their work is displayed in a public exhibition not for sale or for hire.
The Copyright Act also addresses “moral rights”. These include the right to protect your artwork from distortion, alteration or mutilation in a way that harms your reputation, the right to associate your name with your work or, if you prefer, the right to remain anonymous. Moral rights can be waived by the creator, but they cannot be transferred to someone else.
A contract should clearly address which rights are staying with the creator and which are being transferred, assigned or temporarily licenced to another party and, in the case of moral rights, waived. These expectations are important to clarify in any context, but are particularly important when an artist is commissioned to create a work or when an artist is hired by another party for their artistic skills, either as an employee or as an independent contractor.
Something the Copyright Act does not include is an artist’s resale right – the right to a royalty when an artist’s work is resold for a profit. For visual artists in particular, their work is usually limited in quantity; an artist may create only one piece of a work or only a limited number of prints. Authors and musicians regularly sell multiple copies of their work (i.e. books, CDs) as part of their business model, whereas for visual artists, it is more likely that their work derives a lot of its value from the very fact that it is inherently only one of a few. This means that, for example, in a contract with a gallery dealer, an artist may want to consider setting a minimum and maximum price for which their work may be re-sold. This allows an artist to prevent others from making a huge profit off of their labour and reputation or from damaging their reputation by selling their work for too little.
Business & Arts NL: How important is it for artists to have a written contact (whether they are commissioned to do a piece, exhibiting their work in a gallery, etc.)?
LW: Very important. It is always better to set out the rights and obligations of each party in a written contract before any problems arise, no matter the context. This reduces the chances of a misunderstanding between the parties as to the actual terms of the deal. As well, a contract legally binds each party to the terms within it, which means one party can sue the other for failing to uphold their side of the bargain.
Beyond offering this added layer of legal protection, having a solid contract in place early on can also save a lot of time, money and hassle if/when something goes wrong down the line. This is because a well-drafted contract will clearly address the consequences for any breach of the terms and will also set out how disputes are to be resolved.
Business & Arts NL: If an artist needs to resolve a contract dispute, what recourse is available to them?
LW: The first place to look is always in the contract itself. For example, many contracts will set out notice periods where one party can give the other notice that they are in breach of the terms and allow time for the defaulting party to fix the situation.
If the dispute cannot be resolved within the terms of the contract itself and if discussions with the other party are not leading to an amicable resolution, then an artist can sue for breach of contract.
Most often, you would sue for damages – the monetary loss suffered as a result of the other party’s breach of the terms. However, you can also seek an order from the court for an injunction, which would stop another party from doing something contrary to the terms of the agreement (i.e. copying your work). In rare circumstances, a party can even seek an order for specific performance, whereby the court orders one party to perform a duty set out in the contract. This is usually reserved for times when money cannot adequately compensate the other party for their loss.
However, law suits can be costly and can take a long time to reach a resolution. For that reason, it is not always a practical solution depending on the type of dispute at hand. For monetary claims under $25,000, it is an option to bring an action in Small Claims Court, which is oftentimes more efficient and cost-effective than bringing an action in the Supreme Court. There are also other alternative forms of dispute resolution available, such as arbitration or mediation, and these methods can also be very effective in helping parties settle a dispute before going deeper into the litigation process. An experienced lawyer can help you determine the best course of action for your particular case.
Workshop: Legal Contracts for Visual Artists: Roundtable Session
Date/Time: Wednesday, February 7 from 1pm-2:30pm
Location: Neal Building, Fourth Floor, 50 Harbour Drive
Registration: Apply early! Small group, space is limited. Please e-mail bryhanna(at)businessandartsnl.com and pose at least one contract-related question or area you wish to address in this session and include some information about your background. Please include Legal Contract Session in the subject line of your e-mail.
For more information, please click here.