If you aren’t familiar with Maria Brophy, you should be. Maria has been helping her husband, Drew Brophy, run a successful art business for more than fifteen years. She’s also a super savvy businesswoman. And is always willing to share her wealth of experience and stories with creatives. Because she knows what it takes to switch from being a “starving” artist into running a thriving creative business.
(The point of this series is to help you avoid mistakes, not call people out, so the name below has been changed.)
Without diving into the nitty gritty, tell us a little about a time you learned the “legal” ropes…
A few years ago a friend named Melvin commissioned my artist husband Drew Brophy to create a series of characters and paintings that would be used for animation and merchandise.
Melvin explained that he had hired another artist previously but that the artist took payment and didn’t deliver. He had many bad things to say about that other artist, which made Drew and I both concerned about doing business with Melvin.
But, at the time, we needed the work so we ignored our guts and did the deal.
I charged Melvin an $8,000 design fee plus royalties and offered a generously long-term license. I told him that we required $4,000 up front to start the work and the final $4,000 of the design fee was due upon completion.
We signed a simple contract that detailed the agreement, Melvin paid the first $4,000 and Drew went to work on the art.
Though our agreement detailed the number of designs Drew would create, Melvin continued to ask for more and more work. He became a very difficult client, extremely demanding, going outside of our agreement. Because he was a friend, Drew just went with it.
When the work was complete, Drew did something we never do: he gave the high res art to Melvin before final payment was made. This was a mistake.
It took me months and months of phone calls and emails to get just part of the final payment from Melvin. This was incredibly frustrating, as he was a friend and it strained our friendship.
Yuck, that doesn’t sound fun, how did you feel at that moment?
At times, people can put us in a bad position, where we have to decide to either be a sucker or a jerk. This was one of those times, and while I don’t want to be a jerk, I feel worse being a sucker!
This unfinished business hung over my head for eight months. It was incredibly frustrating, having someone dodge your calls and try to get out of paying you money that you worked hard for!
Finally, I realized that just because this was a friend didn’t mean he could screw us over. I decided to put this to rest and I sent a final demand for payment within 10 days and warned that without full payment, he would not get rights to the art.
He didn’t respond and so I followed up with a cease & desist, notifying Melvin that due to nonpayment all rights reverted back to Drew Brophy. (Luckily, our agreement had a statement that said that rights to the artwork transfer after payment is made in full.)
Did this impact your creative business? How?
The impact this situation had on my business was that a lot of time and good energy was wasted on this.
We also lost a friend, and that is probably the worst outcome of this entire situation.
By the way, the other artist that Melvin claimed didn’t deliver the art? We talked to that artist and his side of the story was that he produced a lot of art for Melvin, but didn’t finish it, because Melvin wasn’t paying him. If I had called this artist at the start, I would have handled things differently.
What ropes did you learn from going through this experience?
- Listen to my gut, always!
- If a client bad mouths another artist, call that artist and hear their side of the story.
- Never go outside of my own payment policy; only give a client the high res files after payment is received in full.
How can you avoid this?
Honestly, from the legal end, Maria did all the right things! She had a signed contract that only transferred the artwork after payment had been made in full. If you want a clause like this in your contract, make sure something like this is included:
No rights are transferred to Client unless and until Artist has received payment in full.
It usually makes the most sense to include this clause when you describe the usage rights you are giving to the other party.
How you can easily apply this today
- Pull out your contract and double-check that you aren’t transferring rights to the artwork until after they pay.
Do you have a clause like this in your contract? Have you had to stand up to (and lose) a friend over a contract? Share you story in the comments!