Always Get It in Writing
Photo: Kate Conklin
Guest Post by Attorney Matt Racine
The following is a guest post from my dear friend and trusted advisor Matt Racine, attorney. Matt has generously offered his expertise for those of us navigating the world of creative business. It’s packed with value- enjoy!
Hello everyone. Kate asked me to write a post on her blog discussing the need for artists and other creatives to have written contracts when they do work. I was happy to help her out since I’ve known Kate since she was about 11 years old, and I was actually taller than she was! During the intervening years and growth spurts, she’s helped me out a bunch and I’m happy to return the favor.
[Disclaimer: I am a lawyer, but I am not your lawyer. This article is not legal advice, and reading it does not mean that you and I have an attorney-client relationship.]
Let me begin this post by telling a story.
About a year or two after I became a lawyer, colleague of mine said something that stuck with me. He said, “Every single attorney is actually a self-contained business. We can either open our own shop and hustle for customers or we can choose to be employed by another attorney and receive less in the way of income, but also have less business risk.” (Obviously, a lawyer said that. No normal person talks like that.)
Anyway… I tell this story for two purposes.
First, you as a creative are also a business of one. You can choose to work for yourself, usually as an independent contractor of some sort, or you can choose to become an employee of someone else. It is really a matter of what you are comfortable with and what your vision is for your art.
Second, if you choose the self-employed/independent contractor route, you have business risk. The main risk is: from where and when is the money going to come? The more business risk you have, the more you need to protect yourself with documents like contracts.
If you are an employee, you are protected by a whole plethora of employment laws ensuring that you get paid on time, get paid the agreed wage, are not fired unfairly, etc.. When you are an independent contractor , you don’t have the protection of most of those laws, so you need to protect yourself.
I think a lot of people, including artists and creatives, feel bad or uncomfortable about asking for contractual agreements. People just want to do deals on a handshake basis and assume that everyone involved is an honest and trustworthy person. But, the problem is that even when everyone actually is honest and trustworthy, sometimes we can misunderstand the intentions or thoughts of others. That is when the problems start.
The reason to get things in writing is to protect everyone.
You are protected because the other side has agreed in writing that they will pay you an agreed amount per hour or an agreed amount per completed task. People on the other side of the deal are protected because the exact job or task that you will be performing is specified in detail so there is no misunderstanding down the road. In addition, the written agreement should also explain when a task is to be completed, any penalties for late completion, and any other terms that are material to the task (e.g., the size of a canvas to be painted, the form of digital files to be delivered, who retains copyright, how and when the agreement can be terminated early, etc.).
So, asking for or insisting upon a written agreement is not a “bad” thing, it is just responsible business. And, if you ask for a written agreement and the person on the other side of a deal refuses, that is probably a good indication that you may be dealing with someone who cannot be trusted.
Preparing a Contract
Assuming I’ve convinced you of the need for a written contract, how should you prepare one? There are several ways you can do it: write it yourself, find one online, use one from a reputable provider, or hire a lawyer to prepare one.
I can’t recommend writing a contract yourself. Most people do not know what to put in one of these agreements, so they leave things out or put in the wrong things. If a dispute arises, these self-made contracts are often worse than having no contract at all.
If you insist on preparing your own contract, you should at least find an example online. If you search for contracts in your specialty (e.g., graphic design contracts, music performance contracts, etc.), you can usually find something decent. There are lawyers out there who put sample contracts online. Just make sure that you use one written for your state. Still, this process can be filled with booby traps for the unsuspecting. Some trade groups or publications post sample contracts online. If you can find one of these, they are probably best.
A better option for you DIYers is to use a respected provider of legal information to prepare a contract for you. One of the best out there is probably NOLO Press. They have a page with numerous sample contracts that you fill in interactively. For $35/yr [wow!] you can use their interactive web-based system to create contracts over and over again. Here is the link: https://store.nolo.com/products/business-operations/independent-contractor-agreements.
Finally, you could hire a lawyer. I would recommend this for a couple of reasons. First, anyone who has been a lawyer for more than a few years has seen his or her share of insane disputes that could have been easily remedied by a well-written contract. Second, it is good to have a relationship with a lawyer so that any other issues or disputes that arise during your career can be addressed by a knowledgeable and trusted advisor.
But, you are probably thinking, “Aren’t lawyers expensive?” Yes and no. A good lawyer can prepare an independent contractor agreement for standard tasks or jobs in an hour or less. Many will charge a flat rate of between $100 and $300. And, once you have that first agreement, it can likely be modified very easily for future jobs. So, is a few hundred dollars too expensive for piece of mind? Only you can answer that question.
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I hope you found this article helpful. If you have any questions about this article or written contracts, feel free to call me (858.755.5666) or send me an email: firstname.lastname@example.org.
About the author: Matt Racine is an attorney in Solana Beach, California. He has been a lawyer since 2006 and has been licensed to practice law in California since 2008. He also is the owner, operator, and head dishwasher of Bar Exam Mind, a bar exam preparation website (http://www.barexammind.com).