By Byron Pascoe
Since 2012, Artists’ Legal Services Ottawa (ALSO) has been dedicated to sharing legal information with creators in the national capital region to fulfill a need all too often overlooked for artists. That need is access to justice.
The group is run by volunteer lawyers, with an interest in the arts, and artists. For the past six years, ALSO has hosted numerous educational panels on themes relating to artists’ legal rights and issues; from contracts to copyright, labour issues to new media considerations.
On April 27, ALSO will host When Art Meets Law: The ALSO Arts Law Symposium, a gathering of artists, legal experts and arts industry professionals at La Nouvelle Scène (333 King Edward Ave.) from noon to 5 p.m. There will also be a networking reception from 5 p.m. to 7 p.m.
There are many artists who call the national capital region home. These talented folks are creators of visual works, music, films, web series, logos, designs, novels, scripts, sculptures and pretty much everything in between.
While we read, see and hear about the horror stories faced by major artists, who are being taken advantage of, there are others who are not (yet) so prominent but who are also forced to deal with people taking advantage of them.
Unfortunately, many artists operate without support and without a baseline of relevant legal knowledge.
An artist may be engaged to create a painting, logo or a script, and may be taken advantage of in a variety of ways, usually relating to being required to do more work that he or she expected, and not being paid in full and/or on time. These kinds of struggles negatively affect the artist’s ability to have the time to do more work and discourages others from continuing altogether.
Programs such as the ALSO symposium provide information for artists about how to better insulate themselves from these career challenges.
To that end, here are some general legal tips that artists can consider, in the context of being engaged to produce an artistic work for someone else.
• The Right Customer – Part 1: A very important protection consideration when being engaged by someone to create a work is to ensure the person or company engaging you is the right fit for you and your work. Based on your circumstances this might mean ensuring when you agree to provide creative work that the party demonstrates that they value your creative work, that they are likely to pay you in full as well as on time and will ideally provide a meaningful increase in others’ awareness of you which may to lead to other opportunities.
• Scope of Work: Your arrangement should include a clear statement of work, which identifies the project’s scope and each party’s responsibilities. If conflict arises, it’s often because the scope wasn’t properly defined, which led both parties to interpret things differently. As plans change over time, the scope of your work might need to be amended. Plan ahead by outlining the process for change requests. The party engaging you should understand that the price and deadlines of your work may change based on their requested changes of what you create.
• Delivery: How and when is the work being delivered? Ensure the answers are clearly outlined and are attainable. Don’t provide deadlines that you know cannot be accomplished. It’s better to set a realistic deadline and give yourself some contingency time. Asking the party engaging you when they need the work delivered before you propose a deadline. Also, understand what situations should extend the deadline? For example: if you need to wait for an approval, should that automatically extend your deadline?
• Fees: Clarify what you’re being paid and when. Clarify that tax (such as HST), if applicable, will be added. Regarding the payment schedule, one option is that a portion is to be paid when your work is delivered, and the rest is to be paid on milestones associated with deliverables. Consider your cash flow before agreeing to a schedule that seems too focused on paying you once all your work is done. Also, you can leverage intellectual property to get paid, by making sure that the full rights to use your work doesn’t transfer to the other party until you’re paid in full.
• Proprietary Rights: Are there any elements of what you will be doing that you want to ensure are not being assigned (given) to the other party? Ensure these elements (that you want the right to use in the future) are distinguished from the intellectual property that will be owned by the party engaging you.
• Publicity: Do you intend to showcase the other party’s logo and a sample of the work you’ve done for them on your website in a list of customers? Get approval that you can do this beforehand so there is no confusion whatsoever about this.
• Indemnification: If you’re being provided assets from the other party (for example their logos to add to an artistic work you’re creating for them), your arrangement should take this into consideration. What if the assets being provided to you were taken from someone else without permission? Why should you be exposed? Ensure that risk stays with the other party by way of the other party confirming what they provide you is original and indemnifying (covering) you for any costs you might incur, if what they confirmed to you isn’t true.
• The Right Customer – Part 2: Even if the tips outlined so far are covered in your arrangement with the other party, what you have in writing can only go so far in helping you deal with a difficult customer. If during early discussions, the potential customer is being very difficult, demanding unrealistic timeliness, and/or providing insufficient financial incentives, they may not be the right customer for you. While it’s easier to say no to a potential customer when you have other competing or upcoming opportunities, not having other opportunities might not be a good enough reason to work with someone who isn’t a good fit.
These comments only scratch the surface of the topics identified above. Also, there are other general and scenario-specific considerations for a creator signing a contract.
Byron Pascoe is a lawyer with the entertainment law firm Edwards PC, Creative Law (www.edwardslaw.ca), which provides legal services to creative industries including Music, Film, Animation, TV, Digital Media, Game, and Publishing. He is a board member of Artists’ Legal Services Ottawa, SAW Video and MEGAPHONO. He also writes the legal column for Ottawa Beat and co-founded and co-manages the monthly music industry education series Independent Music Business. Byron can be reached at firstname.lastname@example.org. This article is for general informational purposes only and is not to be considered as legal advice. Please contact a lawyer if you wish to apply these concepts to your specific circumstances.