Getting creative: Understanding Contracts Part 2

Contracts can be scary. When confronted with one, it might be easier to close your eyes and hope for the best, but most lawyers will advise you against this approach. It’s important to spend some time trying to understand any contract thrust in front of you as an artist or arts organisation before you sign it.

To help decipher the legalise, we spoke to Michael Park, Partner at Norton Rose Fulbright (Regional Arts Victoria’s pro bono lawyers). Because he had so much gold to share, we’ve broken this information up into three articles, which we’ll post online over the coming weeks.

This is the second article in the series. To read the first, head to this link.

 

Getting Creative

Contracts Image 2 - Photo by Joe Toohey

Contracts are one of the only aspects of working in the arts where you probably want to limit how creative you get.

Whenever working with contracts, you must be sure you are fully aware of who owns the outcome before you agree to it. Creative control is the area where many disputes arise when dealing with artistic projects, according to Park.

“There’s often a tension between having creative control as the artists and then the person who’s paying the bills effectively producing something that they’re going to be happy with,” he observes.

You need to be careful about how what you’re going to do is defined in the contract, continues Park. “Make sure that you don’t end up in a situation where the person who’s going to be paying you says ‘well, thanks a lot for doing that but that’s not what I wanted. I’m not happy with that so I’m not going to pay you.’”

Intellectual property rights also play a big part in artist contracts. Many people are not sure about how these rights work, says Park.

Try to retain your intellectual property rights where possible. “The best position to be in is if you’re retaining ownership of any intellectual property that you create, and providing a license to the other party to use it for certain purposes.”

He adds, “If you are actually going to be developing something that has intellectual property in it, and you’re going to be transferring ownership of it to the other party, then just think very carefully about that. It’ll mean, typically, that you won’t be able to re-use that, so you need to make sure that you’re going to be adequately paid for that.”

One of the most common contracts you will sign as an artist or arts organisation in Australia is a funding or grant contract. The power balance between funder and receiver for these contracts is often quite one-sided: either you sign the contract given to you, or you don’t get the money to make the project happen.

Park observes that these funding organisations typically have spent significant time (and money) organising a contract template. Changing this template means they might have to go back to their lawyer to approve the changes, which they don’t want to do.

He advises that a more realistic approach for an artist is, first, to read and understand the consequences of the contract. “If you are happy to go ahead on that basis, what you really need to focus on are the commercial elements of the contract,” he continues. “This is the description of what you need to do, when you need to do it, how you need to do it, and then the description of the fees, the funding arrangements and when it’s all going to get paid. Channel your energies towards the commercial elements of the deal.”

In the next and final article, we look in more depth at dispute resolution, and some common mistakes made when dealing with contracts.

Nothing in this article should be considered legal advice. You should seek the advice of a professional lawyer should you require specific advice, or contact one of these very helpful organisations:

 

IMAGE: Fireworks at the Mallee Up In Lights Small Town Transformations launch in Ouyen on 3 October 2014. Photo by Joe Toohey.

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