HOW TO CHOOSE AN ART LAWYER
By: Joshua Kaufman, Esq.
There comes a time when every successful artist is in need of an attorney. It is not always when problems arise. Using an attorney at the early stages of a venture is the best way to insure you don not have to use a lawyer later on. We all know the virtues of preventive medicine well preventive law is just as important to an artist in their business life.
Having an attorney review your contract before you sign it will probably save you countless hours and perhaps thousands of dollars discussing the use of someone else’s image before you incorporated into your artwork can prevent the destruction of a completed limited edition. Initially, verifying whether the humorous work you created will be slanderous or a parody can save you a great deal of anxiety.
No one likes to spend money on lawyers. Who can blame them, after spending hundreds or thousands of dollars you leave the lawyer with an ear full of advice or a few sheets of paper. It is true that the expression we often see in contracts, "reasonable attorney’s fees" is the ultimate oxymoron but the money can be well spent. If the advice you receive is sound you may never see the benefits. Without the advice or if the advice is not appropriate you will be confronted with the unfortunate results. However not seeking a knowledgeable attorney is the classic case of penny wise and pound foolish.
A problem which arises for many artist s is how to find an attorney to his knowledgeable in art law. It is not a very common specialty. Going to your regular real estate or personal injury or divorce lawyer will generally not produce the type of legal work which you need and are paying for. Many attorneys are happy to assist artists. Generally speaking the issues are a lot more interesting than the day-to-day work that most attorneys deal with. They will even offer a discounted rate or volunteer free legal services all in the name of supporting the arts. While that is admirable, (once again falling back on a cliché) you often get what you pay for.
Art Law is an interdisciplinary practice. An art lawyer needs to know about contracts, copyright, trademark, a little bit of tax, rights of privacy and publicity and the various laws specific to the arts. Equally if not more important than having a knowledge of the law is understanding the ‘business". The most brilliant lawyer if they are unaware of the customs of trade and practices in the art world be of little assistance and the help they would provide will be very limited. Having the right books or access to good form is a wonderful starting point however you need to know how to fill in the blanks. You need to know what clauses are important when you’re representing the artist vs. when you’re representing the publisher. You need to know what the royalties are in a given situation and what size advance is the appropriate size.
So if your personal attorney is not suitable for assisting you in your art related matters how do you find an attorney who is? First, ask your regular attorney if he or she is familiar with anybody with expertise in the field. Any competent, confident art lawyer will be happy to work with your regular attorney. It is only an insecure lawyer who are afraid to collaborate with another lawyer. If you cannot find a local attorney with expertise in the arts your best bet would be to investigate attorneys in major cities. In all likelihood they would be more experienced in dealing with the arts than attorneys from a smaller community. How to find an attorney who is outside your community is not nearly as daunting a task as it once was. There are a growing number of competent art attorneys throughout the country. Many of them write for various art publications. Those attorneys can usually be located through the magazines. Often attorneys will give speeches where artists congregate such as art shows, Art Expo, the Licensing Show, etc. A number of attorneys advertise in art publications is well.
The best source is a recommendation from another artist. If you are a low income artists there are a series of organizations throughout the United States known as, Volunteer Lawyer for the Arts. These organizations provide pro bono legal services to low income artists. A number of them also provide reduce fee services for artists who are not quite indigent yet not quite wealthy enough to pay regular attorney fees. Check with your local Bar Association to find out if one of these organizations is located in your city. If you cannot identify one yourself contact, Volunteer Lawyers for the Arts in New York (212)_____________. They put out a directory of all the volunteer lawyer organizations in United States and should be able to provide you with the one closest to your home. Often the problems you’re having are not local rather in your dealing with contract issues or problems with entities in other cities. In such instance of the location of your art lawyer is a little importance. In this age of e-mail, cheap long distance and faxes doing business with a lawyer outside your city is not really difficult. The personal touch always better, having face-to-face meetings with your attorney is certainly preferable to phone calls. However, if that is not possible is not a major detriment to receiving quality representation.
Hopefully, you will establish a good rapport with your attorney; however, you don’t really have to like them. Personally, if you feel comfortable with their competency and that they were looking after your best interests in a professional relationship that is enough.
A good art lawyers is a specialist and as with specialists in any filed they charge more than generalists. If you are in a small town and you find an art lawyer in a larger city they will charge substantially more than your local attorney. Most lawyers charge on an hourly basis for typical for negotiations, contract review, or document drafting. Some lawyers will provide you with fixed fees for certain type of work. These type of matters will generally be contract drafting and matters in which the attorney can clearly identified at the beginning how long it will take him or her to complete an open-ended matters such as complex negotiations or litigation are impossible to project in terms of the extent of the fees. Expect to pay most lawyers an up front retainer fee. This is especially true if you’re first-time client and from out of town. Lawyers are running a business and they want to make sure that they get paid. Chasing a delinquent client for a few hundred or a couple of thousands of dollars when the client reside out-of-state is an exercise in futility for the lawyer. You will find that most experienced art lawyers charge between $200- $350 an hour. The more experienced lawyers charge more per hour but generally take less time then the less experienced less expensive attorney. Therefore in the end a higher hourly will not necessarily mean paying a higher bill. Remember, lawyers bill for their time, that means they charge for phone calls with you as well drafting documents, conducting research (no, they do not know everything by heart), negotiating, etc. All time spent is billed.
Many people ask and hope that their attorneys will take the case on a contingency fee. A contingency fee is where the attorney does not charge their hourly rate rather they take a percent (usually about a third) of the recovery. Remember that the attorney is looking at each case in the businesslike manner and has to evaluate all the circumstances in order to ascertain whether or not it makes financial sense for them to take a case on contingency fee basis. Only a very foolish lawyer would take contingency fee on a case in which there is issues as to liability or a question as to whether if they win the defendant can pay the judgment (otherwise it is a piece of paper suited for wallpaper or toilet paper). Since they will be have to wait for their fees and the payment of the fee is not certain they will want to ensure that their recovery will be substantially more than they would have made on an hourly basis. If these three criteria come together then many attorneys will consider taking a case on contingency fee on the matter. If these three of elements do not lineup you really should not expected an attorney to take the matter or anything but an hourly basis.
You should feel free to ask an attorney how much they think a matter will cost, to set up a budget with the attorney and to ask to be advised if and when they are approaching that budget. Also do not feel shy about asking the attorney about his or her qualifications. Ask how many matters in this field they have handled, for how long. Also, ask for the names of some of their other clients. However, an attorney may not want to give out client names as there are certain ethical problems attorneys have in regard to disclosing their clients names unless those clients have agreed that they may use their names in such a manner.
Using a lawyer who is knowledgeable in the arts is a very important element in any artist business plan. Using an attorney in a preventive matter in the long run will save you thousands of dollars, protect your interests and help your career. Just remember to choose an attorney whose is experienced and knowledgeable in the field, good intentions while admirable, alone will not necessarily serve you well.
Joshua Kaufman is a partner in the Venable law firm, (202.216.8538- www.jjkaufman.com ) based in Washington, DC his clients are located throughout the United States. He is a law professor, artist and regular speaker on copyright, art, licensing and e-commerce issues.