By Kristoff Lajoie, Kabo Lawyers
The relationship between an artist (being a musician, model, designer or other creative professional) and the source of their income will be largely based in private contract. A contract may be formalised in a written manifestation signed by the parties, but an enforceable contract may also be created through verbal or informal written communications. It may also be implied through conduct, past performance or reasonable expectation.
This means that for every job that an artist has, a new contract will be created (even if not in writing). Therefore, the creative industries are often the most in need of a strong legal knowledge base to empower themselves in their professional capacities.
As a lawyer, it is tempting to advise that any professional relationship, particularly where the exchange of money is involved, should require nothing less than a formal, written contract. However, as a former full-time musician, the reality is that this is simply not always practical or appropriate – you may even risk losing a job simply by insisting on it. In such circumstance it is important to keep a record of all communications of the arrangement and to ensure that such communications are in writing where possible (such as email).
For example, a conversation, either by email or by phone, where a freelance musician confirms their fees with an artist, this conversation would constitute an enforceable contract. But what of the other terms? This predicament is demonstrated by several hypothetical scenarios, where we ask the question – “is the musician entitled to their fee?”
- If the turnout at the gig is poor and the artist says that they cannot pay the musician’s fees: the artist is liable for the fees in full, unless the artist had previously stated that payment is conditional upon the turnout and the musician had agreed to this condition.
- If the musician performs poorly at the gig: the artist may not be liable for the musician’s fees, but this is arguable. Was the performance so bad that it affected the artist’s overall performance? Did it affect the artist’s reputation? Was the performance at a level that was ‘reasonably below the expected standard’? The musician may concede this and accept a reduced fee by negotiation. Otherwise, it will be up to each party to establish why or why not the artist should be liable for the musician’s fees.
- The artist cancels the gig: the artist may be liable to pay the musician’s fees depending on the time of cancellation. In the example, there is no discussion of cancellation. It would be reasonable that less than 24 hours’ notice would warrant the artist to remain liable for the fees. The legal theory behind the liability to pay the fees is based on the loss of opportunity by the musician. That is to say, if the musician had turned down work because of the gig, then the artist would certainly be liable to compensate them. If the artist suffered no financial loss – even by opportunity – due to cancellation of the gig, then establishing a basis for compensation might be difficult.
The above scenarios are interchange with a band/venue, a photographer/client or a model/agency etcetera. For bigger jobs, or long-term arrangements, it may certainly be appropriate to insist that a written agreement be put in place, and that such agreement is prepared, or at least reviewed, by a lawyer.
Therefore, for any type of job for any type of artist, there should be some discussion on the following terms (as they may apply):
- The scope of work (i.e. what it is exactly that you are required to do);
- The amount of payment;
- The time of payment (e.g. upfront, or within seven days of completion of the job);
- Any conditions that may warrant a variation in payment;
- Timing (i.e. the time you are expected to attend the job)
- Amount of notice required to cancel without incurring the payment obligation;
- What equipment or personnel you are expected to provide and what equipment or personnel the other party is expected to provide; and
- Any other important issues that may apply to that job.
Where a person is suspected of being finically liable for some breach of the agreement, then the aggrieved party has a right of recourse. In Victoria, for small claims you can make an application to VCAT (the Victorian Civil and Administrative Tribunal). The process for small claims at VCAT is much simpler than going to Court and for claims under $10,000, lawyers are generally not permitted. If the claim is higher, you may consider taking it to the Magistrates’ Court of Victoria (or the equivalent entry-level Court in your state), however, if your claim is over $10,000 then you should consult with a lawyer.
If you intend on making the arts your profession, you should aspire to implement the same level of business acumen that any freelance professional would exhibit.
Kristoff Lajoie is a senior associate with Kabo Lawyers and manages matters relating to contract law, commercial and business law, copyrights and trademarks.
Kabo Lawyers also handles matters concerning migration law, property, family and criminal law and various other areas.
For more information, contact Kristoff Lajoie at Kabo Lawyers on 03 9663 3337 or at [email protected]