Acceptance – The final and unequivocal expression of assent to another’s offer to contract.

Agreement –  A mutual understanding between two or more persons about their reciprocal rights and duties regarding past or future performances. Though much broader in meaning than the term contract, an agreement does not inherently create a legal obligation between the parties.

Consideration – Some right, interest, profit or benefit accruing to the one party of a contract, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other; what is being exchanged between the parties, ex. artwork in exchange for money.

Contract – An agreement between private parties creating mutual obligations enforceable by law.  The basic elements required for the agreement to be a legally enforceable contract are: offer, acceptance, and adequate consideration.

Copyright – Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. (Source)

First North American Serial Rights (FNASR) – The publisher is the first one to publish your piece in print form in North American markets, prohibiting other U.S. publishers from publishing your article. However, you can still sell rights to your article to publishers outside of the U.S. After the periodical publisher has published your article, all rights return to you. You can then resell your article to another publisher with different rights, but no longer with FNASR. (Source)

Fiscal Sponsor – A nonprofit organization that provides fiduciary oversight, financial management, and other administrative services to help build the capacity of charitable projects. 

LLC – A Limited Liability Company (LLC) is a corporate structure whereby the owners are not personally liable for the company’s debts or liabilities. Limited liability companies are hybrid entities that combine the characteristics of a corporation with those of a partnership or sole proprietorship. (Source)

Offer – An explicit proposal to contract which, if accepted, completes the contract and binds both the person that made the offer and the person accepting the offer to the terms of the contract. Includes terms of a contract such as price, quantity, delivery dates, etc.

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This page seeks to provide basic fundamentals of what a contract is and provide samples of contract templates in the arts for various disciplines.

Contracts 101 with Erin McClarty

Put it in writing! Legal expert and lawyer Erin McClarty discusses what to consider when writing a contract for creative endeavors, what should be in every contract, and other typical provisions. Click above to watch this session.

SAMPLE CONTRACTS

NOTE:  These sample contracts are for checklist purposes only.  You use these contracts at your own risk. Fresh Arts will not be held responsible for any unfavorable outcomes associated with the use of these contracts.

Other contract templates/samples:

GYST-Ink Agreements & Contracts Samples

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Copyright vs. Patent vs. Trademark

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others. (Source)

Useful links/articles:

A Guide to the Visual Artists Rights Act by Cynthia Esworthy

Performing Rights Laws for Dancers by Ne-Kajira Jannan

Publication Rights for Freelance Writers by Freelance Writing

Common [Music] Licensing Terms Defined by ASCAP

Copyright forms and resources:

Filing U.S. Copyrights FAQs by Copyright.gov

Copyright Forms for Literary, Performing, Visual, Sound Works and more from Copyright.gov

News regarding Artist Rights:

“The Music Modernization Act has been signed into law” by Dani Deahl at The Verge, Oct. 2018

“Texas court says photographer has no recourse against university copyright infringement” by L.M. Sixel with the Houston Chronicle, June 2019

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“From not understanding the explicit terms of a contract, to failing to register your copyright or trademark and losing thousands of dollars in the process, or even defending against claims or potential lawsuits involving your work, there are plenty of reasons why an artist would want to hire a lawyer.”

Four Reasons Artists Should Hire Lawyers by Nicole Martinez of Art Law Journal

Legal Advocacy Groups/Organizations for Artists:

American Bar Association – Provides resources to find help for people who qualify as low-income.

Arts Council Texas – Arts Counsel Texas is a 501(c)(3) non-profit organization that serves creatives, arts non-profits and small businesses, arts professionals, attorneys, business professionals, and all who support the arts by facilitating meaningful communications and relationships through education, legal advocacy, and collaboration.

Artist Rights Society – Artists Rights Society (ARS) is the preeminent copyright, licensing, and monitoring organization for visual artists in the United States. Founded in 1987, ARS represents the intellectual property rights interests of over 122,000 visual artists and their estates from around the world.

Houston Volunteer Lawyers – The mission of Houston Volunteer Lawyers is to provide free civil legal services to low-income people in Harris County and to promote volunteerism among lawyers.

Lone Star Legal Aid – Lone Star Legal Aid is the fourth largest service provider of free legal aid in the United States. Lone Star Legal Aid serves 72 counties in Texas and four in Arkansas, an area that covers one-third of the state Texas, including almost 60,000 square miles from Texarkana, to the Louisiana-Texas Gulf Coast state-line, down to Matagorda Bay, and four counties in southwest Arkansas. 

Texas Accountants and Lawyers for the Arts (TALA) – TALA provides free legal and accounting services to arts nonprofits and artists from all creative disciplines, including visual artists, musicians, actors, dancers, film makers and writers. Over 300 attorneys and accountants donate their time to artists and nonprofit organizations who are unable to afford professional services.

Texas CBAR – CBAR provides free legal services for low income Texans to start or sustain their small business. CBAR offers a full range of legal services for business owners.

Lawyers/Legal Representation for Artists:

Erin McClarty, PLLC in Houston, TX

Locke Lord LLP in Houston, TX

Ricky Anderson in Houston, TX

Kessler Collins, P.C. in Dallas, TX

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Don’t know where to start?

Intro to Navigating Insurance by Houston Arts Alliance

Types of insurance to consider for artists/spaces (Source):

Commercial Property – This form of coverage protects the physical property that you use for your art business from certain perils, such as fire, flood, storm damage, vandalism, and theft, for example. It covers both the physical structure of your property, as well as the contents within it. For instance, if a pipe bursts and your studio, canvases, paints, brushes, wood floors, ceiling tiles, and anything else were damaged, instead of having to pay for the damages yourself, your insurance would foot the bill.

Commercial General Liability – This type of insurance protects you against any third-party injuries or property damage that may arise on your property or as a result of the services that you offer. If you and your crew ever damaged a client’s property while installing a work of art or someone slipped on a puddle in your gallery, commercial general liability insurance would cover the cost of the associated damages and medical care. It would also assist with any legal expenses, should a third-party file a lawsuit.

Workers’ Compensation – If you employ a staff or you rely on volunteers, you’ll also need to carry workers comp insurance. Should a volunteer or employee sustain an injury or become ill as a result of conditions within the workplace, your workers’ comp policy would cover the cost of any necessary medical care. If the individual is unable to work while recovering, it would also partially reimburse missed wages. Should he or she file a lawsuit, workers’ comp could also help to pay legal expenses.

Guides to Insurance for Art/Artists:

“Insurance designed for artists” by Fractured Atlas

“How to Insure a Public Art Project Toolkit” by Artist Trust

“Insurance for Art and Artists ​in the USA & Canada” by Art Business Info

“The Art of Art Insurance: A Practical Guide for Artists, Galleries, and Collectors” by Will Fenstermaker with Artspace

“Exhibition Insurance/Insurance of Works of Art” by Touring Artists

Insurance Providers:

• Art Installation Insurance Program from CODAworx
• Insurance for Artists, Crafters, Handmade Jewelers, Sculptors, Clothing Vendors, Potters, Art & Craft Show Vendors from ACT Insurance
• Artist & Craft Artist Insurance from Zinc Insurance
• Instrument & Equipment Insurance for Musicians from MusicPro Insurance
• Private, Commercial, Exhibition Coverage from AXA AL
• Texas Artist Insurance Policy Information from GeneralLiabilityInsure.com

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Sole proprietorship

In a sole proprietorship, a single individual engages in a business activity without necessity of formal organization. If the business is conducted under an assumed name (a name other than the surname of the individual), then an assumed name certificate (commonly referred to as a DBA) should be filed with the office of the county clerk in the county where a business premise is maintained. If no business premise is maintained, then an assumed name certificate should be filed in all counties where business is conducted under the assumed name. (Source)

Other resources on sole proprietorship:

Sole proprietership by IRS

What is a sole proprietorship? by TRUiC

Sole Proprietor vs. Single-member LLC by Score.org

Sole Proprietorship, Partnership or Corporation – Choosing The Best Form Of Legal Organization For Your Art Business by creativesandbusiness.com

Fiscal Sponsorship

Fiscal Sponsorship is the practice of non-profit organizations offering their legal and tax-exempt status to groups—typically projects—engaged in activities related to the sponsoring organization’s mission. It typically involves a fee-based contractual arrangement between a project and an established non-profit. There are a few structures to fiscal sponsorship, but here are two related to non-profits.

Model A: The individual who approaches the sponsor becomes the sponsor’s employee or volunteer. Also called “direct” or “comprehensive” fiscal sponsorship.  The project becomes the sponsor’s, so the sponsor has complete authority to run the project and spend funds for its purposes. (Source)

Model C: The individual or entity who approaches the sponsor becomes a grantee of the sponsor (but the project activity is not absorbed into the sponsor). Also called “indirect” or “re-grant” fiscal sponsorship.  The sponsor receives donations for the project’s purposes, retains discretion and control over the funds, grants them for project purposes, and requires reports to confirm that funds were spent properly. (Source)

Check out Fresh Arts’ Model C structure in a presentation
from the Fresh Arts Summit.

Other resources on fiscal sponsorship structures and/or sponsors:

Fiscal Sponsorship for Nonprofits by National Council of Nonprofits

Fiscal Sponsor Directory by fiscalsponsordirectory.org

Limited Liability Corporations

A limited liability company (LLC) is a corporate structure in the United States whereby the owners are not personally liable for the company’s debts or liabilities. Limited liability companies are hybrid entities that combine the characteristics of a corporation with those of a partnership or sole proprietorship. (Source)

Other resources on LLC formations:

Formation of Texas Entities FAQS by Texas Secretary of State

Form an LLC in Texas by TRUiC

Download: Form 205—General Information (Certificate of Formation—Limited Liability Company)

501(c)3 Non-Profit Organization

Section 501(c)(3) is the portion of the US Internal Revenue Code that allows for federal tax exemption of nonprofit organizations, specifically those that are considered public charities, private foundations or private operating foundations. It is regulated and administered by the US Department of Treasury through the Internal Revenue Service. (Source)

Application for Recognition of Exemption from IRS

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