In November 2019, pop star Taylor Swift posted to her social media about her dispute with her former label, Big Machine. She asked fans to help her because her former label was not allowing her to perform her own songs at the American Music Awards or for her songs to be used for an upcoming Netflix documentary.
Swift signed away the master rights to her songs when she signed with the label when she was fifteen. Since then she’s become a pop star and has since signed with another label that retains her master rights. The label owning the master rights disputed her claims, and she was allowed to perform her songs at the AMAs and use the music in her film.
Taylor’s predicament is a newsworthy example of an artist’s disputes with other people. Artists in the visual and performing arts have issues with people who pay them (or not pay them) that may be solved through the use of a smart contract.
Why should artists consider getting a contract?
Contracts are an important way for artists and the people they are working with—museums, galleries, buyers, etc.—to outline the terms of work. “Contracts create a roadmap for the duration of a relationship between the parties involved in a deal,” explains Louise Carron, Executive Director at the Center for Art Law. “A contract is a way to anticipate questions and resolve issues before they arise.”
What counts as a contract?
One misconception is that contracts have to be formal written documents. “A contract need not be long nor does it need to be in a particular format; it could be an email or a series of texts that outlines the terms the parties agreed on, followed by parties starting to act accordingly,” Carron says.
For sales of goods under $500, a handshake deal is also valid. But she notes that there are advantages to having it written out: “Although drafting a written contract might be tedious and full of legalese, it is highly important to have one, only to be able to refer back to it later. That is particularly relevant for consignment contracts under NY Arts and Cultural Affairs Law, where only artists with a written consignment agreement can claim artworks still in the possession of a bankrupt gallery.”
What should be in the contract?
While contracts can differ based on the type of work—whether it’s a painting, sculpture, performance, or something else—there are some general concepts that artists might want to consider. “A contract is usually described as a “meeting of the minds,” meaning parties negotiating at arm's-length agree on the parameters of their relationships—how costs and profits are divided,” Carron says. “Generally, that means that when two people agree on a price and a quantity with enough certainty, a contract has been formed.”
One element is to describe the art to be delivered in the contract, explains Anne-Marie Rhodes, John J. Waldron Professor of Law at Loyola University Chicago. Does the contract stipulate what the work will be or what terms the buyer wants to see? Sometimes contracts can be too open-ended for the artist, which may result in the buyer receiving a painting they are not happy with, or the contract can be too restricted so the artist does not have a lot of artistic freedom. Rhodes points out that sometimes contracts may have clauses where the buyer pays a deposit upfront, and the artist delivers preliminary work so that both sides’ needs are respected.
Another provision is when the work will be delivered, Rhodes says. She points to the unfortunate extreme case of mega artist Jeff Koons who is years behind on his artworks, and some of his buyers have sued him for it. Determining when the piece will be delivered is important. Carron also suggests figuring out “who is responsible for shipping and handling the work from the artist’s studio to the collector’s home” as well as liability and insurance.
There’s also the issue of moral rights, which are defined as “the right of an author to be credited as the author of their work (the right of attribution) and the right to prevent prejudicial distortions of the work (the right of integrity).” This means that “whoever who buys [an artwork] can’t change it and have to keep it the same way,” explains Rhodes. Artists retain moral rights even if they sell work, but they can give those rights away in a contract.
Copyrights are another important consideration, as evidenced by the Swift dispute with her label. She signed away her master rights, which are the rights to the recordings but retained the publishing rights (right to the composition).
When should an artist consult an attorney?
Artists may want to consider consulting an attorney earlier than later with a contract. Many cities have a volunteer organization for lawyers in the arts that can help artists out, even if they are early in their careers, Rhodes points out.
While Swift had a contract (allegedly assisted with the help of lawyers and her family), oftentimes artists may not realize what they may be giving up. Lawyers can help “to make sure people understand what they are agreeing to,” Rhodes says. “Our job is not to drive the deal but to listen to each side and come up with a contract that reflects what the people want and give guidance.” Because at the end of the day, “you should start out with a good understanding of what you signed, what you’re obligated to do, and what the other has obligated,” Rhodes explains.