This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article enlightens us about the need for an Artist Agreement.
Artist agreement or contract is just like any other contract including two or more parties coming together to comply with a legally binding agreement.
Every event or exhibition of any variety of art taking place, even if a temporary one, requires a legal binding agreement or contract to which the parties should comply with for smooth conduct of the event. The parties to an artist agreement are generally the performing artist or the owner of the artwork and a borrowing institution i.e. those who hire artists for various projects, or it can also take place between any event organizer and the host of the venue where the event is to take place.
Things to remember while making an Artist Agreement
- The contract should be a written one because a written contract gives you more certainty for proof as compared to a verbal one and should be clear enough to be understood by everyone.
- As mentioned already, a contract is basically made to stipulate the respective duties and obligations of the parties to the particular contract. A formal agreement works as a manual to the parties which helps and instructs them about their responsibilities in the context of the contract.
- This agreement is somewhat like a partnership and having a legal contract for the same will be beneficial in avoiding disputes between the parties.
- For every contract, you should hire a lawyer who will be well versed with the legalities of the contract and would suggest you better in any matter relating to the contract.
- Artist Agreement requires a Letter of Agreement which specifies the terms and condition of the agreement and parties can use it while negotiating anything. It includes the standard business correspondence like the contact information, project information, tax ID, claims period, etc. So it needs to be clear enough to be understood by the parties. This needs to get signed before the artist is assigned with his or her work. Signing the agreement means the conditions are accepted and now the work can be initiated.
Contents of an Artist Agreement
Biodata of the parties
A bio or an introduction is absolute proof to the world about any individual and in this case the bio proves that it is you, as a party, that is legally bound by the agreement. One must go through your bio to have a piece of detailed knowledge about you. Similarly, this is applicable in contracts and agreements as well. So biodata is the first entry to any agreement which includes your name, address, business, email, phone number etc. Therefore, a bio is very essential to know about the parties involved.
Terms and conditions of the project
The second condition briefs you about the particular project for which the contract is being made. It also briefs about the respective responsibilities and obligations which the parties have to comply with. All of the conditions are expressed in a detailed manner. It contains all the conditions covering every aspect that can be taken into consideration in executing the project. Besides the duties, the contract specifies certain rights for the individuals where they can use their rights if in case there are any losses or damages that are incurred by the individual or in case of breach of any condition of the contract. In addition to that, it puts the required restrictions. The terms and conditions vary according to the nature of the project.
The project’s timeline is as important as the conditions of a contract. You may incorporate the duration clause in the condition clause. This clause shouldn’t be missed out. It is essential to mention the expected time for the initiation of the project and the completion as well. Parties are required to conclude all of their responsibilities by the due time period. This clause should also include the consequences if either of the parties fails to comply with the conditions. However, the artist cannot be held liable for a delayed commission of work assigned to him if there is no such time-barred condition made by the client before. In case of a performance that is to be held in an enclosed venue,and where there was no time barred condition, the host of the venue cannot deprive the artist of his payment or any other bonus because of his delayed performance.
This clause talks about payment issues. First of all, this clause should set out the price of the project on which they are working. It is more of a time saver if you set out all the expenses initially, so that afterwards you can focus more on the project. This clause should also include the payment process i.e. how the party wants its payment to be processed throughout the course of a payment or final payment or anything of such manner. It should mention the responsibilities of each of the parties regarding the payments to be done by them. All the secret profits, fees or taxes should be disclosed within this clause. All the dates for specific payments need to be mentioned in this clause itself. The payment method preferences, such as payment made in cash or cheques or credit, of the artist or the client is also to be included in this clause. Besides that, the amount that is to be received by the side performers such as the dealers, venue hosts and other agents for their role in executing the project should also be added to this clause.
This clause should include all the necessary items required for the particular project, prices of the items, their descriptions and basic details to recognize the items. These items are basically included by the artists according to their requirements in performing the project. Images and titles etc also come within the purview of itemization.
Artist agreements are not just limited to documented contracts, it also has various online platforms as well, where the client has to deal with various artists and the artists have to comply with the guidelines provided in the particular platform where the artist has to perform. The agreements may vary with every artist, the agreements may not be the same for all the artists performing for the online platform such as Streo, which is a live streaming platform for users to access live digital content from anywhere. Here the artists are in a contract with this platform and have to comply with the guidelines of the Streo.
In this clause, the parties should mention the outcomes or solutions for any cancellation made by either of them. The measures that can be taken if there is a cancellation by the parties at any point in time. And no matter for whatever reason the termination is made, the payment processing should not stop.
This clause is included for the security of the performing artist so that his basic rights don’t get infringed in any way while the project is in process. And as far as the artist’s security is concerned we have provisions to protect copyright issues under intellectual property rights.
Acceptance to the agreement
This clause comes into action when the parties have agreed to the agreement including the terms of the agreement followed by the names, signatures and the dates where the dealing is going to take place.
If in any case, the parties want to alter any term in the agreement made they can seek for it in various ways:
- Parties can go for a full revision before signing or accepting the contract.
- Attach an appendix concerning the particular alteration to the original document of the agreement.
- You can also make necessary changes in the original document itself by writing it down somewhere in the document in the presence of the parties involved for the purpose of witnessing it.
This clause is added more as to suggest remedies if there is any situation arising from any kind of dispute which would lead to the cancellation of the agreement. Besides that if the agreement is getting cancelled it shouldn’t affect the artist in any way so there should be advance payment to the artist so that the time and effort for the particular project doesn’t go to waste.
This clause gives rights to both the parties for the royalty if there is any profit resulting from the project. Both the artist and the client are entitled to enjoy the royalty because the profit is the result of teamwork.
Importance of an artist agreement
- An artist can be considered as an employee, thus it shows that there is an employee existing in the contract. In professional relationships, there is always a contract. An artist always receives a contract and it’s always important to create the terms of the agreement. The agreement is the key to show how substantial the agreement is.
- In the situation of an artist, it is very important for them to make a good contract on which they can rely on. An artist’s career is based on a good contract, thus it’s very vital for an artist to make a good agreement. Contracts are not always strong and it may not always protect you. But both sides of a party are always protected by a strong contract.
- The question in this is about why an agreement is important to an artist. And the answer to it is that the work of an artist involves a lot of originality. Taking the context of IPR in consideration, it should be protected. More the acknowledgement, the more the artist is prone to risks of getting the work pirated or copied.
- An artist contract is always based on a lot of requirements. While listening to a play, there are a lot of parts where the artist is hesitant to do and abstains himself or herself from doing but it can not be taken into consideration until it is stipulated in a contract. This protects the artist from performing an act which he or she does not want to. This shows how a contract plays an essential part in protecting the rights as well as the interest of an artist. This would avoid all sorts of differences while the original work is executed and the artist can take the contract into aid to protect the rights.
But now the question is; how can an artist build a strong contract? And the answer to it is the artist should hire a lawyer to deal with the legalities of the artist agreement in order to avoid disputes.
How can an artist protect his work
Generally, an artist gets a right to protect his original creativity under the copyright law from the whole world and prevent it from getting copied or usage without the artist’s permission. The creation can be anything relating to a specific art like music, drawing, any video or etc.
Artists are either commissioned by a client to create the work or create their own work. In a client assigned work the artist usually stands as a freelancer or independent contractor which means there is no employer-employee relationship between the client and the artist. As the artist is an independent contractor he is entitled to all the rights to his work unless there is any condition to the contract mentioned in the clauses of the contract.
Being an independent artist coming up with your own creation without a client’s involvement will open him to the market and for this, the artist has to compete with the trending business strategies and the business laws as well.
Provisions made concerning an artist’s work in the media industry
- The basic provision is the Copyright Act, 1957 which provides exceptions to protection such as ‘fair use’ and ‘compulsory license’ besides providing remedies in case of copyright infringement.
- The Trade Mark Act, 1999 usually protects the artist’s work-related title and names.
- There is a Co-production treaty which is done between India and other countries for giving incentive for any kind of collaboration or any production that is to be done by the client for the artist if the performance is required to be done in any foreign country.
- Then there is the Central Board of Film Certification (Censor Board) which examines and handles the issues relating to film production. It basically observes if the film is fit for the audience or not and regulates all of the songs, promo, trailer, etc.
- The media industry imposes certain Service Tax under the Finance Act, 2012 such as the services provided by the artists and technicians and licensing any IPR within the industry is also liable to service tax.
- Then there is Entertainment Tax which we usually come across while booking any movie ticket. The exhibition of cinematography falls under the purview of entertainment tax.
The Indian media industry is growing rapidly with massive responsibilities over an artist and the client, because in the process of execution of the work the parties have to look after all the general aspects focusing on the audience requirements. The work should not defame or hurt sentiments of any audience, any group of people or any community. The success of an artist agreement is solely based on the terms and conditions which neither of them can refrain from.
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