Artists, Lawyers, and Specialness

The American Bar Association publication Landslide asked several lawyers to write about aspects of representing clients in the arts. My contribution (below) is in the January-Februrary 2013 issue.

Artists have one thing that many others don’t have: What they do, how they think, and what they create is imbued with creativity and specialness. For example, bankers won’t keep on banking without a payout, but devoted musicians and painters work all the time in basements, garages, and clubs. How do we reconcile this intrinsic specialness with business and law in a highly practical way where money might not always be everything?

Having represented big publishers and distributors in traditional and new media on the one hand and individual artists on the other hand, it’s clear from my experience that they don’t always share the same perceptions and culture. In some fields, such as photography, from the company’s perspective the world does not revolve around the artist even if the artist thinks otherwise. To counter the premise of specialness, it’s true that to some buyers art is fungible, not special. Perceptions as to value and one’s relative place in the sun really do affect negotiation leverage in the arts.

It’s commonplace, for example, for commentators to say that musicians should give away their music and make their money though merchandise and live shows. Apart from the impossibility of this financial model for the emerging bands, say, in Brooklyn, this point of view devalues the art itself. If the artwork has no economic value to the. public, our constitutionally mandated system of incentivizing creativity is eroded. There is a wonderfully strong case for copyright and the value of the artwork, despite the trash talk about it.

Some things to note that flow from the premise that something special is going on are:

  • Art is easily ripped off, and traditional intellectual property categories can only help so much. Contracts, including click-through agreements, are valuable additional ways to creatively protect creativity.
  • Artists don’t always follow a lawyer’s advice. Like a dentist’s fruitless exhortations to floss, real-world compliance in registering copyrights and obtaining model releases may be lacking. Creative workarounds of problems are (almost) always possible so that all is not lost (e.g., an unlicensed element in movie footage can be edited and still make the creative point).
  • A painting that never makes it out of the studio can’t inspire the public and can’t pay the artist’s rent. Even when it’s risky to disclose ideas; and to make deals, taking chances isn’t just bold art; it can be good — even necessary — business.
  • Artists and their lawyers need to see the big picture and to envision careers as much as the individual dots of deals when deciding which opportunities to seize.
  • Artists are being asked to be renaissance men and women who know how to market virally, merchandise, work with social media — and by the way, create great art. The lawyer can help fill in gaps in business skills; some artists are more like Mozart than Jay-Z in terms of business acumen.
  • Artists may want to be creative and innovative in their business models (e.g., ticketing and fundraising), not just their art. Why not explore? New ideas for new media make perfect sense.
  • Clients — both large and small — view lawyers through the lens of legal fees. Candid discussion of fees and feelings is often essential. Volunteer Lawyers for the Arts groups are often a good place to refer artists when the rates of the lawyer are too high in context.
  • Someone who is an artist may not have the personality of a CPA or a lawyer. Being a bad boy or girl can be in the artist’s DNA — and can sometimes even help a career! In behind the scenes business, however, the artist must be savvy and cool in picking the right fights.

One thing to know about representing artists is that they truly do have something special. The arts and entertainment lawyer can help the artist channel that quality into a practical, successful, special career.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.