Do You Actually Need a Lawyer for That Contract?
A quick gut-check for artists and creatives before you review and sign
Artists, writers, performers and entertainers rely heavily on contracting their work for reliable sources of income. As an NYC-based or Brooklyn-based artist, you may be looking at a deal memo, a memorandum of understanding, a term sheet, a rights release, a licensing agreement, or a purchase offer.
Sometimes these documents are drafted thoroughly by an attorney. Other times, they are form documents that someone pulled from somewhere online.
Having a lawyer review every deal presented to you may not be realistic for your budget or circumstances, and it’s true that getting every contract reviewed may not even be necessary.
Knowing which contracts you definitely should have reviewed by counsel can save you time and money for deals you can handle on your own while striking the right balance of making sure your rights are safely protected in more complicated matters. Being able to discern this is itself a skill that matters, and we want to help you tell the difference.
What Kind of Contract Am I Looking At?
Many of the contracts you will be looking at and asking yourself this question about fall into a few distinct categories: a standard form agreement (examples include an online platform’s terms of service or a venue contract), a template you found online and may have tweaked for your own purposes, or a specific deal for work drafted by the other person’s or company’s attorneys.
You may or may not be able to tell the difference simply by looking at the contracts. Instead, try reading some of the provisions and consider what it asks you to sign away.
Standard Form Agreements
These agreements, which may be something like a platform’s terms of service or a venue contract, can be non-negotiable, or impractical to try to negotiate.
For example, if you review terms of service for an online platform, it is clear that they can be extremely long, and contacting the platform’s attorneys for questions may be impossible or extremely difficult.
Further, it may be clear that the contract’s terms are “take it or leave it,” or that the company is extremely unlikely to alter their terms on a one-off basis.
Some venue contracts, on the other hand, may be partially negotiable, but there will likely be some terms in the agreement that the venue holds firm on.
When you are reviewing these terms, more important than asking an attorney for help is to understand whether what is being asked of you is an acceptable compromise for you to make.
Templates or Email Agreements
Templates pulled online probably include simple or basic terms. It is unlikely that a template contains thirty pages of dense language. Likewise, an email agreement you might reach with someone else likely covers the basics of any deal, like the cost, length of time for the work, and other important details.
These types of agreements may deal with situations that are brief or one-off, like a single small commission or a short freelance opportunity. It is possible that you have worked with the other person before or the relationship itself adds a bit of security to the agreement.
Typically these agreements do not (and should not) include more complicated terms, like:
Ongoing revenue or royalties;
A licensing relationship for any term;
Continued payments from or to either side; or
Other terms that only favor the other party you are working with.
If you’re reading this section and thinking that many of these factors apply to your situation, you can probably go ahead and engage with the agreement or pull a clean, simple template (naming the parties, the scope, the payment, and the time). This is especially true if, after you’ve reviewed the terms, you’re comfortable that any loss you might incur if the deal falls through is small, low-stakes, and a risk you are able to take.
Contracts You Should Consider Having Reviewed
There are some contracts that you will definitely want reviewed by an attorney.
If you’re reviewing a deal, there are some provisions or factors that should signal a need to slow down and get an experienced eye on things before you sign. These could include:
Ongoing royalty calculations and payouts;
Revenue share or recurring payments (as opposed to a single, flat fee);
Licenses, assignments, or transfers of any ownership of your work (including translations, reproductions, derivative rights, or use of your name and likeness);
Exclusivity clauses, or statements that you are barred from doing similar work with someone else for any length of time;
Contracts sent by the other side’s lawyer with no opportunity for negotiation;
High-value deals, or deals for an extensive body of work;
Agreements with companies or individuals you have not worked with before; or
Provisions that simply do not make sense to you.
In some situations, like in book publishing, you may have an agent or someone working on your behalf in obtaining the deal. Often, agent review of a contract is a great starting point. But if there are some terms that you don’t understand even after talking with your agent, or points you think you might want to push back on, it would be wise to ask an attorney to look it over if you are able to spend money up front to have those deals reviewed by someone else.
Spending money in the short term could save you money or time, protect your rights, and spare you headaches down the line.
Gut Check
If the deal requires a tight turnaround, ask yourself:
Does this deal involve continuing or broken-up payments, or a one-time fee?
Does this contract give rights to my work to a publisher or company, or include a phrase like “name and likeness”?
Is there anything in this contract prohibiting me from working elsewhere?
Can I read and understand the terms I’m looking at?
If you’re not comfortable with the answers to any of these questions, it may be worth it to ask an attorney to review. At Expand Law, Lindsey Rubinstein is happy to give an opinion on whether your contract is worth reviewing before you commit to a retainer agreement.
What Are the Consequences of Skipping Attorney Review?
In some cases, there might be no consequences at all.
On the other hand, if you think the contract is complicated for any reason, it could be helpful to have a lawyer look at it. Contract review is often a flat cost, and can be more modest than you might expect—often just a single conversation and a markup. Compared to the costs you might incur if something important is missed, this could be negligible and well worth it.
Working with an attorney does not mean you need that service every time. It may just mean that someone with experience explains to you, quickly and honestly, what’s happening in the deal you’re signing.
It’s important to know when this cost is worth it and when you can move forward on your own.
Expand Law maintains an active blog which provides general legal information. Under no circumstances shall reviewing this blog constitute legal advice. If you are looking for legal advice specific to your issue, please contact lindsey@expandlawpllc.com for a free consultation.
Attorney advertising. Results depend on a number of factors specific to each matter. Past results do not guarantee or predict a similar outcome in your case.
