By Nina Berman on May 10th, 2021
Contracts for Artists: What They Are, When to Use Them, How They Can Protect You
As an artist, you are always working with other people. You might be working collaboratively to put on a performance or create an interactive installation. You might hire a freelancer or work as a freelancer. But even if your work doesn’t appear to be collaborative, you are probably still working with other people. You might rent a studio or performance space or work with a retail location or gallery. For example, my work as a ceramicist is very independent in terms of the creative process, but I still am a member of a shared studio space and sell my work at a neighborhood shop.
To protect yourself as an employer, employee, or collaborator, it’s important to make the terms of your creative relationships clear with a contract. We know that artists can be hesitant about contracts because they seem overly professional or formal, but we believe that they can be of real benefit to you and your collaborators.
Much to my family’s disappointment, I am not a lawyer. That means that this advice comes with a disclaimer. This is not legal advice. If you are looking for legal advice, we recommend that you consult with a lawyer to understand the best course of action for you and your work.
What is a Contract?
At its simplest, a contract is a formal agreement where two or more parties establish a shared understanding of expectations and responsibilities as they enter into a partnership. A contract could help you establish the scope of work for a project, compensation, and the eventual ownership over a project or pieces of it.
Contracts can be short or long. A contract could be called a release form, a deal, a MOU (a memorandum of understanding), or something else. But they are all basically the same insofar as they are designed to help a team or a group of people get on the same page about what their working relationship will be.
But what makes a legally binding contract? According to Rocket Lawyer, a contract is considered legally binding if there is clear subject, consideration, and capacity. Subject means that the terms of the contract are laid out clearly. Consideration means that there is motivation or reason for each party to enter the contract (often this is the financial part of a contract). Capacity means that everyone involved is of sound mind and is able to freely consent to the agreement.
It’s important to remember that contracts are living documents. If you are asked to sign a contract, you can and should ask questions about it and request changes if you need them. If the work starts to change a lot, you can always create a new contract to better reflect what is actually happening.
Artists’ Anxiety Around Contracts
We’ve heard from artists in our community that are nervous about using contracts. We understand that for many artists, contracts can feel overly business-y or too official. It can feel stressful to wade into what can appear like legal jargon. It might make you feel like you’re out of your depths.
Some artists might also worry that your work isn’t valuable or important enough to warrant a contract or a formal agreement. We understand the anxiety, but if you want a formal agreement, you and your work deserve it!
You might also feel like it’s uncool or un-chill to formalize an agreement if you are collaborating with your friends. But actually, working with friends can be tricky. Fractured Atlas Program Operations Coordinator Colleen Hughes (who actually inspired this whole article) is a big believer in contracts for friends. “Contracts are just as important (maybe even moreso) if you are working with longtime collaborators or friends. Don't just assume you're all on the same page - put it in writing and make sure it works for all parties.”
Artists get nervous about contracts because you think that they might just be used to exploit you or be weaponized against you. And, if you want to make any changes to a contract, you’ll run the risk of losing a gig or an opportunity. But you should always be able to ask for what you want and need in a contract negotiation. At best, you’ll be able to advocate for yourself and get what you need. At worst, if the other party isn’t willing or able to give you what you need, you’ll know that it wouldn’t have been a good working relationship anyways.
Why Contracts Matter for the Arts
Contracts are about helping creatives (or anyone else) clarify expectations about the nature of a relationship.
If you set up parameters ahead of time, you can create a shared understanding for how much work is expected, how much you will pay or be paid, when that compensation will occur, and other subjects that get sticky if you don’t talk about them ahead of time.
Without contracts, artists might find themselves underpaid or, worse, not paid at all for work that they expected to be compensated for. You might find yourself being asked to do way more labor than you thought you signed up for. You might also find that you end a project thinking that you own the rights to your contribution and your partner feels very differently. Setting up a contract ahead of time can help you avoid these miscommunications and frustrations.
Fractured Atlas Program Assistant Molly Winstead uses contracts to set and manage expectations in her life as a theater artist. As she puts it, “The contract is where you can make sure that you [are all] on the same page. When you put these expectations in clear, concise language, then the contract protects you both from potential disagreements or miscommunications.”
Formalizing your expectations in a written way will help you set up the structure for a stronger and more open working relationship. If you come to an agreement before a project starts about what kind of collaboration, partnership, or job you are embarking on, you’ll be able to create more freely within that structure, knowing that you’re on the same page.
When Do Artists Need Contracts?
Artists can, of course, decide when it is important for you to have a formalized agreement about a collaboration. But generally speaking, any time you are buying or selling something (including your labor!) or collaborating on a project, it’s not a bad idea to make sure all parties are on the same page about what you are getting into.
You might want to have a contract if you are engaged in freelance work, consulting work, consignment of work to a gallery or store, hiring outside help, commission work or creating commissioned work, renting space or equipment, and plenty more. You can create or ask for contracts if you are the one contracting the work or the one whose work is being contracted. Ideally, a formal agreement will be there to protect you both.
You don’t just need contracts for big events. Even if you are putting together a small show, it’s helpful to create a shared understanding between all parties.
Fractured Atlas Project Management Specialist and co-founder of curatorial collective Jip Gallery Sophia Park, believes that contracts are important even for small shows. She tells us, “It's particularly important when there are multiple parties involved and honestly super key to protecting the artist. A consignment agreement may seem like a lot of work for a small show, but you'd be surprised how helpful it can be if any problems arise.”
Plus, if you get in the practice of creating contracts to formalize agreements in smaller, lower-stakes relationships you’ll be better prepared to advocate for yourself when bigger opportunities come your way!
Artistic Collaboration Requires Honesty
To create healthy working relationships where artists, gallerists, venues, and everyone else in the arts ecosystem can thrive, we need to have clear and honest communication. We need to be able to be up-front about our expectations and needs. Then, we’ll know what kind of creative container we have to stretch our wings into.
Contracts can help us have conversations about our expectations, limitations, boundaries, and capacities that will let us work together in healthier ways. It can be hard for artists to have frank conversations about the nuts and bolts behind our expansive creative visions. But we need to talk about them. Perhaps the most pressing issue is getting artists to talk about money.
About Nina Berman
Nina Berman is an arts industry worker and ceramicist based in New York City, currently working as Associate Director, Communications and Content at Fractured Atlas. She holds an MA in English from Loyola University Chicago. At Fractured Atlas, she shares tips and strategies for navigating the art world, interviews artists, and writes about creating a more equitable arts ecosystem. Before joining Fractured Atlas, she covered the book publishing industry for an audience of publishers at NetGalley. When she's not writing, she's making ceramics at Centerpoint Ceramics in Brooklyn.