Contracts 101 - Resource Guide for Artists

[aeshnidae]

Post 1 of 4

In another thread (about pricing), I offered to put together a little contract primer for those of you who are taking commissions or doing freelance work. I tried to post this as a PDF but the site told me that my .PNG was in the wrong format. I'll try again later. In the meantime, here's a Contracts 101 that I put together based on my experience as a contracts lawyer who does pro bono work for artists. Moderators - If this is too long, or in the wrong place, or shouldn't be here at all, please move, delete, or tell me to move/delete as you see fit.

CONTRACTS 101

This information is provided for informational purposes only and does not constitute legal advice. (Sorry, gotta put that in for professional licensing reasons). Also, this post may not be useful outside the United States (or in Louisiana, you guys insist on your French continental law system). The laws of your particularly state may provide you with additional protections. California, for example, has laws designed to protect artists.

GENERAL INFO ABOUT CONTRACTS
It’s a good idea to have a contract, but a poorly drafted contract is useless (or worse than useless). A contract should clearly lay out the rights and responsibilities of each party. There should be no ambiguity, no kicking the can down the road. Write in plain English. Use section numbers and headings (called captions) so that you and others are literally on the same page when reviewing the contract. Define any industry-specific terms.

Keep the contract as concise as possible (says the lawyer who just wrote 7 pages of this stuff for my post). If you are being commissioned for commercial purposes, especially if the other party is a company, your contract should include more terms than if you’re drawing a map for someone’s personal D&D game.

If your contract is with a company, the company will probably tell you it’s non-negotiable. This is not true. In contracts between private parties, hardly anything is non-negotiable. If you think the company might be trying to screw you, they probably are, so get some money upfront. If a company’s contract is confusing or the company has breached the contract, consider getting in touch with attorneys who provide free or greatly reduced legal services to artists. The Washington, DC area has one (https://waladc.org/legal-services); I assume other areas do, too.

If your contract is more than 1 page, consider including a line on each page for the client to initial (usually this is bottom right or bottom left, in the footer). This way you can prove that the client has seen each page.

If you have a large blank spot on your page, perhaps because you’ve used a page break to move on to a different section or insert an image, include the following statement directly above the blank space: Remainder of page intentionally left blank. This will keep unscrupulous people from sneaking in extra terms.

Words that have a special meaning should be defined at their first use. For instance, you want to define your client so that you can refer to them as “Client” throughout the contract. You define a term by including it in quotation marks in parentheses. For example: This agreement (the “Contract”) is entered into by John Doe ( “Cartographer”) and Jane Roe ( “Client”). Cartographer agrees to provide, and Client agrees to pay for, one (1) commissioned color map printable at 11x17 inches (the “Deliverable”). Once you’ve defined a word, be consistent about using it.

DEFINITIONS OF COMMON CONTRACT TERMS

Arbitration: An out-of-court procedure for resolving disputes in which a neutral third party (the arbitrator) hears evidence and makes a decision. Arbitration is an alternative to a court trial and is supposed to be less formal and less expensive, but in practice it’s almost the same as a court trial but you have fewer rights. In binding arbitration, the arbitrator’s decision is the end of the line; you cannot appeal it.

Assign: To transfer all rights and responsibilities to another party. Basically, a complete sale of an item (in the case, a map) and all rights relating to it (copyright).

Choice of Law (aka Governing Law): The body of law that will apply to your contract. Typically you want this to be the laws of wherever you live (e.g., “this Contract shall be interpreted according to the laws of the State of California without reference to its conflicts of laws principles”). This term is often lumped together with Jurisdiction and Venue.

Contract: A legally binding agreement involving two or more people or businesses (called parties) that sets forth what the parties will or will not do. If your contract is for more than $500, you need to have it in writing in order to enforce it. Keep in mind that contracts have many different names – Memorandum of Understanding, Letter of Agreement, Task Order, etc. – but they are still contracts.

Copyright: A collection of rights granted to the author of a creative work, including the right to make copies of the work, authorize others to make copies, make derivative works, sell and market the work, and perform the work. Copyright springs into existence the moment you create your work (in legal terms, when the work leaves your brain and becomes “fixed in a tangible medium of expression”). You do not have to register your copyright with the US Copyright Office, but if you want you can do that here: https://www.copyright.gov/registration/.

Effective Date: The day a contract begins and can be enforced. Usually this is the date of the last signature but it can be whatever you’d like – 7 calendar days after the last signature, upon receipt of the first payment, whatever.

Force Majeure: A contract provision that excuses one or both parties from performing the contract if performance rendered impractical or impossible by some unforeseen event such as illness, fire, flood, “Acts of God,” etc. (As a side note, lawyers use “Acts of God” as an umbrella term for unforeseen natural occurrences, like earthquakes. It’s a way to encompass everything that could go wrong on account of nature.)

Indemnification: A guarantee against a loss or damage that another might suffer. In practice, indemnification is an agreement to step into the shoes of the other party if they are sued. If you indemnify John for a certain purpose, and Susan sues John for that purpose, in practice Susan is suing you, and you must pay for an attorney and pay any judgment.

Intellectual Property (“IP”): Property created by the human mind, such as written works, art, inventions, trade secrets, and trademarks. Intellectual property is typically protected by patent, copyright, trademark, and trade secret laws. IP is distinct from personal property (cars, TVs, chairs, etc.) and real property (land and buildings).

Intellectual Property Indemnity: A guarantee that if your work violates the IP rights of another person, you will (1) fix the problem (typically by altering your work so that it does not infringe, purchasing the right for your client to use the infringing work, or cancelling the contract and returning the client’s money); and (2) indemnify the client if the client gets sued for infringement. You can also split this in two – agree not to infringe but do not agree to indemnify if your work does wind up infringing on someone else’s IP. This would mean you would have to fix the problem, but you would not step into your client’s shoes if he/she is sued.

Hold Harmless: Often lumped in with indemnification, this is actually a promise by one party not to sue the other party. It’s a party-to-the-contract thing, whereas indemnification involves some third party unrelated to the contract.

Jurisdiction: The authority of a court to hear a case. In a contract, you can agree to the jurisdiction and venue of a particular court. If you live in California, you probably don’t want to agree to New York jurisdiction and venue, because you’ll have to travel to New York to enforce or defend the contract.

License: A contract (or contract clause) giving written permission, for some period of time, to someone to exploit your intellectual property (here, your maps and related creative works). The party who owns the work and is granting the license is the licensor; the party licensing the work so they can use it is the licensee. A license can be exclusive (right to use the work is limited to a single licensee) or non-exclusive (you can license your map to multiple licensees). A license can be for commercial purposes (the licensee intends to make money from your map) or non-commercial purposes (the licensee is using your map for their personal D&D game or to hang on their wall, etc.). A license can also include the ability to sublicense, which means your client can further license your work downstream without your prior permission and without paying you anything extra (e.g., you license to ABC Company, which then sublicenses to Wizards of the Coast).

Mediation: Like arbitration, but less formal and not legally binding.

Termination for Cause: A clause that allows a party to terminate the Contract if the other party breached it. Usually there is a cure period built in, where the non-breaching party gives the breaching party 30 days to “cure” the breach.

Termination for Convenience: One or both of the parties wants to terminate but not because the other party has breached the agreement. They just don’t feel like having the contract anymore.

Venue: The appropriation location for a trial. This is linked to jurisdiction and can be used to narrow jurisdiction. Perhaps you agree to New York law, but you live in NYC so you don’t want to travel to Buffalo if you have to sue, or you get sued. You can limit venue to courts in NYC.

Warranty: A promise or assurance. Warranties usually require that you correct any defects in your work and cover the cost of doing so. These are tricky because warranties can be express (you’ve included them in the body of your contract), implied by the circumstances, or implied by law. An Implied Warranty of Merchantability is a warranty implied by law that your map is fit for the ordinary purpose for which it is used. You can specifically exclude this by stating in the contract that you disclaim warranties of merchantability and fitness for a particular purpose. An Implied Warranty of Non-Infringement is another warranty implied by law and promises that your map does not infringe on the intellectual property of another party (e.g., you didn’t just steal that map from someone else and sell it to your client). You can disclaim this warranty, too (you can infringe on someone’s IP unintentionally, so it’s not considered sketchy to disclaim this warranty).

[aeshnidae]

Post 2 of 4

CONTRACT CLAUSES YOU SHOULD PROBABLY INCLUDE (especially with companies)

(Note: I’m including common contract clauses with some information for you to consider. You do not have to include all of these clauses (also referred to as “provisions” or “terms” or “terms and conditions”), and there are certainly plenty of extra terms that you could add. The clauses below are in the order they tend to appear in the contracts I review.

In most cases, I’m not providing the actual language to drop into your contract. When I do include it, I’ll put **double asterisks** around the specific language. I’m only providing specific language for clauses where the exact wording is important and not necessarily obvious.)

Preamble: Start your contract with this language or something similar: This agreement (the “Contract”) is made on [insert date] (“Effective Date”) by and between the [name of your client] (“Client”) and [insert your name] (“Cartographer”). In consideration of the mutual agreement made herein, both parties agree as follows:

1. Scope of Work: Describe the project. Be as specific as possible, particularly about your deliverables. What size/resolution map will you provide? Color or B&W? Are you providing a print or a digital map? If digital, what is the largest decent print size? Does the map include fancy frames, compasses, or other illustrations? Is it your responsibility to make the map geologically/geographically sound (proper placement of mountains, rivers, etc.)? Anything you expect to be paid for should be detailed in this section.

2. Project Timeline/Milestones: When are you expected to deliver the final product? Are there any milestones along the way? If the client can provide feedback on milestones or the final map, give a time frame, e.g., “if client does not respond within 3 business days, the milestone shall be deemed accepted by the client” or “If the client does not raise an issue within 10 business days of receipt of the final deliverable, the final deliverable shall be deemed accepted by the client.”

3. Delivery: State how you are delivering the final product (via email, Google Drive, mail, UPS, etc.). If delivering via Google Drive or something similar, put a time limit on how long the deliverable will be available. That way you don’t have a client coming back to you 2 years later asking for the file.

4. Compensation: What is the base price? Will additional costs (such as revisions requested by the client) be negotiated at the time or preset? If negotiating at the time the need arises, consider including a minimum additional cost for options – not just revisions, but if the client decides he/she wants color, different size, etc. Are there any fees you need to add, such as Etsy or PayPal fees? Are you charging sales tax?

5. Payment: This is not the same as compensation, but you can combine the two. Payment terms dictate when the client needs to pay you. You can tie payment increments to milestones ($25 upon signing the contract, $50 upon receipt of initial linework, $100 upon receipt of final linework, $100 upon delivery of final map). Another option is progress payments – the client splits up the total cost into, say, four payments. Those payments are tied to the calendar, not to specific milestones.

6. Modifications: You may want to allow for modifications to the contract, such as time extensions. Modifications should be in writing, signed by both parties (or in email with explicit confirmation by both parties of the intent to modify the contract).

7. Revisions to Deliverable: You can include this in the modifications section or break it out separately. Will you allow for any minor revisions to your completed map? Major revisions? If so, be specific about what counts as a revision, whether revisions cost extra (maybe the first one is free but subsequent revisions will cost the client), the time period for the client to request revisions, and the max number of revisions you’ll do. It’s also a good idea to state what counts as a minor revision vs. major revision.

8. Notices & Contacts: List yours and your client’s name, phone number, email, and best times to call.

9. Termination: Can you terminate the contract unilaterally and/or without cause (i.e., for convenience)? Can the client? (You and the client can always agree on mutual termination.) What happens in the event of termination, in terms of both the map and finances? If the client terminates without cause, you should be able to keep whatever down-payment was made, or get paid for the work completed up to the date of termination. You should also specify that termination must be in writing. It’s unusual to see Termination for Convenience provisions in contracts. As the cartographer, I would not permit my clients to terminate for convenience without a financial penalty.

10. Ownership & Licensing: The client is paying you for the work you are doing, and not necessarily for the right to use the work in a certain way. Most people do not understand this, so you have to spell it out very clearly. Will you continue to own the artwork but grant your client certain rights to use it? In that case, you should include licensing language and account for any additional costs related to licensing. You can charge an upfront license fee and/or you can charge royalties (so if your client makes money off your map, the client needs to give you a percentage of the profit).

(Note: Clients will expect, at a minimum, a non-exclusive, fully-paid, royalty-free license to use the map for non-commercial purposes. You can state the following: **Cartographer hereby grants to Client a non-exclusive, paid-up, royalty-free license to use the map for non-commercial purposes.** A non-exclusive license allows you to continue using the map and to license it to others at the same time. A non-exclusive license can also be used for commercial purposes. A license for commercial purposes should cost more than a license for non-commercial purposes. If you don’t want to have a separate licensing fee, you may want to wrap that cost into the overall price of the map.

You can also grant an exclusive license for commercial purposes, which means you can’t license the same map to other people. An exclusive license should cost more than a non-exclusive one.

You can also permit your client to sublicense under a non-exclusive or exclusive license. This means the client can license your map downstream without your permission. An exclusive commercial license with the right to sublicense is the broadest license and the best case scenario for the client, so it should be the most expensive option.

If the contract contains a work-for-hire clause, the client owns the resulting map and you have no rights to it. In the contract, you are agreeing to assign all rights in everything you create for the project to your client.

If you assign or exclusively license the deliverables to your client, you have zero rights to use your work unless you retain for yourself a license to use the work. If you are assigning or exclusively licensing the map, include language such as: **Client hereby grants to Cartographer a non-exclusive, fully-paid, irrevocable, royalty-free license to use the Work for promotional and internal purposes.** This allows you to display a copy of the map in your portfolio.)

11. Limitation of Liability: **IN NO EVENT WILL EITHER PARTY OR THEIR OFFICERS, AGENTS OR EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUSINESS EXPENSE, MACHINE DOWN TIME, LOSS OF PROFITS, DAMAGE OR INJURY TO PROPERTY, FOR ANY CLAIMS, DEMANDS, OR DAMAGES ARISING OUT OF THIS CONTRACT OR USE OF THE DELIVERABLES BY ANYONE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.** (Note: Yes, disclaimers must be in ALL CAPS, otherwise a court might not enforce them.)

12. Liability Cap: ** EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES WHATSOEVER RELATING TO OR ARISING OUT OF THIS CONTRACT AND/OR USE OF THE DELIVERABLES, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE TOTAL OF ALL AMOUNTS ACTUALLY PAID TO CARTOGRAPHER BY CLIENT UNDER THIS AGREEMENT UNLESS FURTHER LIMITED BY APPLICABLE LAW.**

13. Disclaimer of Warranties: **DELIVERABLES ARE PROVIDED AS IS. CARTOGRAPHER AND HIS/HER RESPECTIVE OFFICERS, AGENTS, AND EMPLOYEES JOINTLY AND SEVERALLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR ARISING BY OPERATION OF LAW, REGARDING THE DELIVERABLES THAT MAY BE CONTEMPLATED, ANTICIPATED, OR DEVELOPED BY EITHER OR BOTH PARTIES; THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMMERCIAL VALUE, AND/OR FREEDOM OF DELIVERABLES FROM INFRINGEMENT OF ANY PATENT, COPYRIGHT, OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.**

14. Force Majeure; Client Delays: Cartographer shall not incur any liability or penalty for delays in the completion of the project due to actions or negligence of Client, unusual transportation delays, unforeseen illness, or other events beyond the control of Cartographer. If such event(s) occur, Cartographer may extend the completion/delivery date by the time equivalent to the period of such delay.

15. Disputes; Attorney’s Fees: In the event of a dispute, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Contract. (Note: Do you have to include this? Absolutely not. But a lot of artists get ripped off because the person paying them doesn’t think it’ll be worth the artist’s time to go to court. This provision will make your client think twice about ripping you off, because if you go to court and win, your client will foot the bill.)

16. Severability: **If any one or more of the provisions contained in this Contract, or any application thereof is held to be invalid, illegal, or unenforceable in any respect for any reason, then such invalidity, illegality, or unenforceability shall not affect any other provision hereof or any other application of the affected provision. It is the intention of the parties that if any provision or application thereof is held to be invalid, illegal, or unenforceable, there shall be substituted in lieu thereof a valid and enforceable provision or application as similar in terms to such provision or application as is possible.** (Note: This is one of the clauses I’d delete if I had to make my contract shorter. So long as you are not contracting for something illegal, you’re probably fine without it.)

17. Governing Law: **This Contract shall be construed and governed by the laws of the State of [insert state where you live] without reference to its conflicts of laws principles.** (Note: This last part, the “without reference to its conflicts of laws principles,” is a way of ensuring that the state law you specify will apply. There are boring legal reasons why a court could apply the laws of another state if you do not include this language.)

18. Relationship of Parties: For the purposes of this Contract and all services to be provided hereunder, the parties shall be, and shall be deemed to be, independent contractors and not agents or employees of the other party. Neither party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other party, except as may be expressly provided for herein or authorized in writing.

19. Entire Agreement: This Contract constitutes the entire understandings of the parties with respect to the subject matter of this Contract. All prior agreements, whether oral or written, are superseded by this Contract.

Acceptance: This is the area for both parties to sign and date (and include their printed/typed names). You can call the section “Acceptance” or simply write “Agreed to by:” before the signature block.

CONTRACT TERMS TO AVOID

Arbitration: It will prohibit you from going to small claims court, which is often the best option for artists. In small claims court, you do not need an attorney and usually the other party cannot bring an attorney, either. For arbitration, you may not need an attorney, but you should have one.

Conflicting Work/Exclusivity: You want to be able to work for more than just a single client. You may be okay accepting language stating that you won’t work for your client’s direct competitor at the same time, but otherwise you should be free to take commissions from anyone, regardless of your client.

Indemnification by Cartographer: Making a fantasy map is a very low-risk activity. It’s very unlikely that someone will be harmed because you’ve made a map. Even so, there is no need for you to go out on a limb and offer to be sued in place of your client. If a company insists on including this, at least make it mutual so that the company has to indemnify you, too.

Non-Disparagement: This is a BS clause that basically prohibits you from complaining about your client, even if they breach the contract and stiff you on payment.

Termination for Convenience: You probably don’t want your client to be able to terminate the contract just because they feel like it. If the client insists on including this clause, make it mutual so that both parties can terminate for convenience and make sure the clause sets forth the amount you will be paid in the event the client terminates. You should insist on being paid for the work you’ve already performed.

Work-for-hire/assignment of intellectual property: Unless you are comfortable not having any rights in your work (or unless you’ve been able to retain for yourself a license to continue to use your work), this may not be in your best interest.

NEXT TIME: Cease & desist letters

[ChickPea]

Thank you so much for sharing this, aeshnidae. I'm sure it'll be very useful to many artists here.

There seems to be an issue with uploading PDFs at the moment. Not quite sure what the problem is, but you're not the only one who's been unable to upload them. I believe you can upload text files (for example, a .doc file). Not sure if that's easier for you? Text within a comment is fine by me, though.

[Azélor]

The Pdf issue has been there for some time, it's not temporary.
The easiest solution would be to put the Pdf in a Zip file.

[Diamond]

Thanks so much for this! And thanks for being the cool type of lawyer who wants to actually help people, instead of, ah, the other sort.

[Tonnichiwa]

Thank you so much for this!

[aeshnidae]

Thanks so much for this! And thanks for being the cool type of lawyer who wants to actually help people, instead of, ah, the other sort.

You're welcome (everyone, not just Diamond). I'm happy to be the cool type of lawyer who helps people. Too bad that never seems to lead to being a rich lawyer!

[aeshnidae]

Post 3 of 4

DEMAND LETTERS

This information is provided for informational purposes only and does not constitute legal advice. (Sorry, gotta put that in for professional licensing reasons). Also, this post is specific to United States law.

There are a few different types of demand letters, which are used to assert your legal rights and make legal claims. You can use these to demand restitution, payment, performance of contractual obligations (and if you think the other party is about to breach the contract, you can demand an “assurance of performance” – basically a request that the other party promise to keep the promises made in the contract), or to tell people to stop engaging in certain behavior, like infringing on your copyright.

Some courts require that you formally demand payment before initiating a lawsuit; other courts do not. Regardless, demand letters can be very useful to artists because they show the other party that you’re serious about enforcing your legal rights; studies show that about a third of disputes get settled based on a demand letter. As an added benefit, you don’t need a lawyer to write one! That’s right, you can prepare your own demand letter and send it to a client (or anyone else) who is violating your contract, infringing on your intellectual property, or interfering with your business opportunities.

The goal of a demand letter is to encourage the other party to assess the situation from a business and risk perspective. It puts the other party on notice that you’re serious and hopefully will make them consider how much time, money, and effort it will take them to fight you, rather than simply do the right thing. If the other side is concerned about public opinion, a demand letter should make them think about the negative publicity that could be generated by a lawsuit (or a complaint filed with the BBB, or your local TV news station, etc.).

I’ll cover two types of demand letters: demands for payment and demands to cease and desist some type of behavior.

CEASE & DESIST LETTERS
Demands to cease and desist are most useful to artists in a few instances: (1) someone is infringing on your copyright (or other intellectual property); and/or (2) someone is defaming or harassing you; and/or (3) someone is intentionally interfering with your business, either by interfering with your client (or prospective client) relationships or interfering with your ability to perform on a contract.

Preparing the Letter
As with any type of demand letter, the first step in preparing a cease and desist letter is thinking carefully about your situation. What facts, laws, and evidence will you need to prevail in court? All of that information should find its way into your demand to cease and desist. You want to write a complete record of the initial dispute and any subsequent communications with the other party, or inappropriate conduct by the other party. While it’s important to properly document your dispute, it’s also important to be as concise as possible. The demand letter should be as short as possible while stating your case. Even attorneys try to keep demand letters to one or two pages, and we are verbose windbags by nature.

As with any type of demand letter, your cease and desist letter should be politely professional. This means you must type the letter, run a spell check and grammar check, and maintain a polite (if a touch icy) tone. Keep in mind that if you have to go court, the judge will read your cease and desist letter. It should be a letter that puts you in the best light possible while accurately stating the facts and the evidence that supports your point of view.

Structure of the Letter
There is no specific structure required. I recommend using typical letter format but adding a “Re:” line after the address and before the salutation. For example, “Re: Demand to Cease & Desist Copyright Infringement” or “Re: Demand to Cease and Desist Tortious Interference with Business.”

Demands to cease and desist typically include: (1) a history of the dispute, including the facts that support your case; (2) references to any laws that the other party is violating; (3) a request for a specific resolution and (4) a statement that you intend to “promptly pursue any and all legal remedies” if your demand is not met within a specific amount of time.

The request for a specific resolution is important! You need to ask for exactly what you want. Demand letters for payment are a bit more obvious in this respect, because your contract specifies an exact amount (in legalese, a “sum certain”). Think about how you’ve been wronged and what will set it right. If someone is using your map without your permission, you may want to demand that they immediately stop using it, period. Or you may want to demand that they pay you for a license and/ or credit you as the artist. If you’ve also lost money because someone infringed on your copyright, you can ask for monetary damages to make up for your loss. If the person who used your map without your permission made a profit on it, you can demand that profit.

Most cease and desist letters are going to be a simple “knock that **** off,” but really think it through and assess what damage was done to you, your business opportunities, and your artistic reputation. If all you want is for the person to stop using your map, think about monetary damages anyway. They can be a negotiating point, where you offer to not sue for damages to which you’re entitled in return for the other party knocking it off, permanently.

The deadline is also important! You want the other party to know that you mean business. You want to motivate them to deal with you quickly. I recommend giving a deadline of no more than ten (10) business days. (You should specify business days or calendar days. A calendar day deadline arrives faster because it doesn’t get put on hold for weekends or holiday closures. If you do not specify business days, the law defaults to calendar days.) And do say that you will “promptly pursue any and all legal remedies” if your demand is not met within a specific amount of time. And then pursue those legal remedies, if you can. If a demand letter does not prompt a settlement offer, there’s a good chance that filing a complaint (step one of a lawsuit) will. Around 90% of my pro bono cases (for artists) have settled after a demand letter; the remaining 10% have settled after filing a very basic complaint in small claims court. You do not need an attorney for either of these steps.

In some situations, you may want to include (on a separate page) a very short settlement agreement. In a settlement agreement, you agree to release the other party from all claims (meaning you won’t sue them) if they comply with your demand.

Copyright Infringement
This is a rare legal field where the law is the same throughout the United States! You won’t need to look up state-specific laws because copyright is granted by the federal government.** The statute (law) is 17 U.S.C. §§ 106 and 106A. (In actual language, that’s Title 17 of the United States Code, Sections 106 and 106A.) Section 106 gives artists the exclusive rights to produce copies of their work (for sale or any other reason), make derivative works, and display the work publicly. “Exclusive” is the key word here, because it allows the artist to legally prohibit anyone else from copying, displaying, etc. his/her artistic work. You, as the artist, can assign or license those rights as described in my earlier post.

Section 106A gives artists who create visual works (like all of you) some additional rights. You have the right to claim authorship of the work and prevent your name from being used on works that you did not author. You can also prevent any “distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” Section 106A rights always belong to the artist/author. Even if you have assigned your rights and are no longer the owner of the copyright, you still have the rights granted by Section 106A.

**Obviously this is US law only. But the European Union, Mexico, and commonwealth nations provide similar rights and possibly some additional rights.

Harassment, Defamation, and Tortious Interference with Business Relationships
A quick reminder: “The Law” breaks down into (1) criminal law and (2) civil law. Criminal law is pretty easy to recognize – it’s all over TV. Civil law is for everything else and breaks down further into (a) contracts law, (b) tort law, and (c) administrative law. Forget that last one because it’s about government regulations. Everything we’ve discussed so far has been contract law where you and another party specifically agreed to an exchange of benefits (you get money, your client gets a map).

There is also tort law. In legalese, a tort is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” In English, someone does something that causes loss or harm to someone else. Lawsuits over injuries from car accidents are torts, but you don’t need a physical injury to sue in tort. Injury can be emotional, economic, or reputational, or the result of an invasion of privacy.

The main tort claims for artists are defamation, harassment (sadly this seems to be more of an issue for female or non-binary artists), and interference with business (sometimes called interference with contracts). Defamation is an attack on your reputation, via slander or libel. You can remember the difference between the two because Slander is Spoken. Every other type of defamation is libel.

In every state, it is unlawful to engage in defamation of someone’s character and reputation. If you need to write a cease and desist letter for defamation, you’ll need to find your state’s law. It might be a statute (enacted by your state’s legislature) or it might be a court case (issued, probably, by your state’s highest court). Google and Google Scholar can probably find it for you. Many states have defamation per se laws, which means the statements are inherently defamatory. You don’t have to prove any physical or economic injury.

Almost all states have criminal laws that prohibit using “electronic communications” to harass and defame people. If you’re being harassed via social media, it doesn’t hurt to remind the harasser that they are violating these laws, and thus committing a crime.

Interference with business relationships (sometimes called malicious interference or tortious interference with business) is behavior that maliciously or wrongfully interferes with your economic relationships in the absence of a breach of contract. Many artists now rely on social media and other websites to promote their work and the law recognizes this. For example, perhaps you sell your works on DriveThruRPG or you post ads on Facebook. If a competitor starts lobbying hard to get DriveThruRPG to ban your work, or flags your ads as abusive on Facebook, they are interfering with your business relationships. If they don’t have a right to do that (your work complies with DriveThruRPG’s requirements, your ad is perfectly appropriate), you can demand they knock it off. If someone is consistently reporting your posts as abusive or inappropriate, and the posts are not either of those, that can also constitute tortious interference with business relationships.

[aeshnidae]

Post 4 of 4

Here’s a sample cease and desist letter for harassment, defamation, and interference with business opportunities:

DATE

NAME & ADDRESS OF RECIPIENT

Re: DEMAND TO CEASE AND DESIST

Dear [name],

You are hereby directed to CEASE AND DESIST ALL HARASSMENT AND DEFAMATION OF [YOUR NAME] AND CEASE AND DESIST ALL INTERFERENCE WITH MY BUSINESS OPPORTUNITIES.

I am a respected professional in the community and have spent years building a positive business reputation. I have collected evidence showing that you have engaged in making false, destructive, and defamatory statements against me and my business and have maliciously attempted to interfere with my business. Screen shots of your statements are attached.

Under Maryland law, it is unlawful to engage in defamation of another’s character and reputation, and unlawful to interfere with business relationships. A defamatory statement is one “which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person." See Offen v. Brenner, 402 Md. 191 (2007), quoting Smith v. Danielczyk, 400 Md. 98, 115 (2007). Maryland is a per se state. Defamation per se means that the contested statements are inherently defamatory and a plaintiff does not have to prove actual damages to prevail in court.

Malicious interference with business relationships consists of behavior that “broadly, maliciously or wrongfully [interferes] with economic relationships in the absence of a breach of contract.” See Kaser v. Fin. Prot. Mktg, Inc., 376 Md. 621, 628 (2003); see also, e.g., Natural Design, Inc. v. Rouse Co., 302 Md. 47 (1984). Furthermore, it is unlawful to harass another individual and to misuse electronic communications for the purposes of harassment and other unlawful activities. See Maryland Code Annotated, Criminal Article, §3-803, §3-805.

Your defamatory statements on my social media accounts and about me on other social media accounts, including statements urging other individuals and entities to cease doing business with me, as well as your attempts to report and block me from these platforms (which are required for the conduct of my Designs business), constitute harassment, defamation, and malicious interference with business relationships. Your attempts to convince [name of website, company, magazine, etc.], a company with which I do business, to cease its relationship with me and your comments on [company’s] social media accounts are particularly egregious.

Accordingly, I demand that you (1) immediately cease and desist your unlawful defamation of me and your unlawful interference with my business relationships; and (2) provide me with prompt written assurance within ten (10) business days that you will cease and desist from further defamation and further malicious interference with my business relationships.

If you do not comply with this cease and desist demand, I am entitled to seek monetary damages and equitable relief for both your defamation and your interference with my business relationships. In the event that you fail to meet this demand, I will promptly pursue all available legal remedies, including filing a police report regarding your electronic harassment and seeking monetary damages (actual and punitive), injunctive relief, and an order that you pay court costs and attorneys’ fees.

Before taking these steps, however, I want to give you one opportunity to discontinue your unlawful conduct by complying with this demand within ten (10) business days. Accordingly, please sign and return the attached Defamation Settlement Agreement to me at the address shown at the top of the first page of this letter.

Sincerely,

[Your name]
[Your address]


Settlement Agreement for Defamation and Malicious Interference with Business Relationships

I, [name of other party], agree to immediately cease and desist defamation of [your name’s] character and reputation and cease and desist malicious interference with [your name’s] business relationships. In exchange, [your name] shall release me from any and all claims against me for defamation, harassment, and malicious interference with business relationships. In the event this agreement is breached by me, [your name] will be entitled to costs and attorney’s fees in any action brought to enforce this agreement and shall be free to pursue all rights that [your name] had as of the date of this letter as if this letter had never been signed.

NEXT TIME: Demand letter for payment

[damonjynx]

Awesome post, aeshnidae. Unfortunately I don't have time at the moment to read it in full but thanks for posting. I will definitely reader later when I get home.