Contracts...are they essential for you?

^{by: J. Stilwell-Cheek}

_{Both, Clients wishing to gain a bit more insight into the world of their graphic artist, as well as, the professional graphic artist and designer in search of information regarding contracts, and the consequences of their choice regarding whether or not to use them, should find this article of interest.}

It is common knowledge that the purchase of a vehicle, or, a home, requires a contract. As do credit cards, loans and almost any other negotiation where a monetary commitment in exchange for goods, or, services, is involved.

During my early days as a free-lance artist, I abhorred the use of contracts and shunned them because of the sense of mistrust and dishonesty they seemed to infer. [Hence, the name of title of this article, CONTRACT-shuns.]

This idealism served well until the inevitable happened...

Being left in the lurch on a major project by a client who "decided not to move forward with this project at this time" was a costly wake-up call!

More than two months, and in excess of 40 custom designs, after the commencement of the client's project, I was hit with the harsh reality that for some persons, there is just no follow-through and for those persons honesty and ethics do not hold a very high priority in their lives.

That experience certainly caused me to be more empathetic to both sides of 'The Contract'.

Two avenues were available. To continue as status quo, or, to examine the real need to devise, and use, a contract in the future.

During the examination phase, one fact kept presenting itself, repeatedly. That fact being that, unlike the majority of retail businesses, designers and illustrators neither purchase ready-made items for resale, nor do we have shelves lined with our 'wares' or keep an inventory of 'goods' for sale, from which, clients may choose what they want, pay for it, and take it with them.

There is, also, a much different sales 'process' than with conventional products. Even a traditional artist finishes her pieces and can usually anticipate those works being shown in a gallery in one location or the other. In a sense, building an inventory, like that mentioned in the above paragraph.

Graphic art, by contrast, is usually not finished until after client input. At least, not in the same marketable sense as a framed painting or finished sculpture. (Many graphic artists do sell to stock houses and sell collections of clip art on CD. This is not what is being referenced.)

Though it is true that both kinds of artists may wait to sell; one waits for a buyer of their finished product while the other waits for a buyer in order to finish their product.

This makes our 'stock' quite intangible until it is output on a press, or, other media. A major caveat here is that, more often than not, any work custom designed for one client is fairly useless for any other project. [ At least not without much editing.]

It is not only the designs themselves. It may take hours of research, telephone calls, meetings, art that may have had to be purchased from a stock house; PLUS the possibility (read...inevitability) of having to defer other clients (or any income-producing activities) during the artist's commitment to the current one, in order to complete a project.

Artists used to have no protection. This changed in 1976 when the current copyright laws, known as the Copyright Act of 1976, were written. (The new laws were not made effective until 1978.)

Incorporating contracts into your business may meet with some resistance, initially. With some of that resistance coming from yourself. Make certain that your document is found to be fair, well written and straightforward; not extreme in length and with NO fine print.

Contracts may make some persons uncomfortable. Here is where it is essential to have your communication skills in top working order. Any points of concern or disagreement should be discussed and clarified as soon as possible. In selling visual art, there are many more areas of concern to include, such as; rights of use, the return of prototype materials, form of reuse, etc. These issues must be addressed up front to avoid confusion that may lead to wrongful assumptions later.

A contract serves to protect all parties involved. If you are satisfied with your terms of the agreement - which you had better be, well in advance of presenting it to any client - then your main focus can be on your client's concerns and the proposed project at hand.

My personal advice would be; if you are a free-lance artist, or, own your own company where you are the Sole Proprietor, you should use a contract if at all possible. In the event that a contract default or violation by a client is too costly, at least you will sink alone.

If you have any partners, investors, or, other financial backing - you cannot afford NOT to use a contract! You are playing with someone else's money, in this case, and things can get very ugly, very quickly.

A few words, in closing, for the potential, or, current client in this field; As a business person, you do not hesitate to protect your assets via the use of contracts, employee manuals, handbooks depicting your business policies, or, any other means necessary.

You are in business for a profit, not as a hobby. You realize the urgency of having all of your bases covered and keeping the possibility of loss at a minimum. If you did not thoroughly understand the importance of these factors, you would not maintain a healthy business for very long.

'In today's visual world, the works created by graphic artists are among the most powerful vehicles for communicating ideas in our society. A successful illustration can single-handedly sell a product. A successful logo can, by itself, evoke a company's goodwill in the minds of the public. A successful poster can inspire an entire population to action.'¹ Pretty powerful stuff, isn't it?

Think of branding. The *Coca-cola swirl; the logo-type of *IBM; the yellow triangle used in the *Caterpillar logo; the nondescript swish of *Nike. Billions upon billions of dollars have been made by these companies. Money which is directly attributable to the branding image involved which makes these corporations, and their products, instantly recognizable.

Like all professionals, graphic artists must adhere to stringent guidelines and ethics. However, their work is especially vulnerable to the exploitation and unauthorized use of others. Therefore, the maximum protection that the law allows, is a necessity.

Your graphic designer is on your side. She wants your company to succeed and is willing to assist you in accomplishing this goal by using every tool at her disposal. At the same time, she is a business person and, as such, she uses the same means to protect her interests as do you.

In a profession where 'ideas' can translate into obscenely large sums of revenue, protecting intellectual property is not a simple matter. Even with the strictest of laws now governing copyright infringement, we all continue to lose property to those intent upon taking it.

This is some information and several facts that this artist, as well as almost every other graphic artist and designer, would like for you to take into consideration regarding our profession.

Personally, I would wager that your visual designer is one of the handful of persons, outside of those shareholders' meetings which your company conducts, who wants nothing more than for you to succeed and who will do everything within their power to make that happen!

ESP has reviewed a variety of contracts which are specific to the graphic design and illustration profession. We have compiled useful information regarding the development of your own simple, yet, highly sufficient, contract.

The findings, comments and remedies to many contract questions are covered, in-depth, in the following article. Click HERE to read further.

**This information is in no way meant to be taken as legal advice, nor, as a substitute for the expertise of your legal counsel. Although simple and sufficient contracts may easily be written by the artist, in the case of documents that require in-depth stipulations, or, where there are investors involved, it is always best to consult with your attorney or legal department.

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