Making a deal to bring an artist’s work to the wider world can be nerve-wracking especially during the contract negotiation phase when the artist is pitted against a team of corporate lawyers. Too often, the artist doesn’t have enough money to hire a legal team to fight for contract terms on his or her behalf. The result is a lopsided agreement that favors the corporation’s interests.
The recent lawsuit over the use of the Angry Birds’ name for a line of pet toys is the typical result of a poor contract negotiation. But if an artist can’t afford an attorney, what can they do?
The Story of Juli Adams vs. Angry Birds
Rovio Entertainment’s Angry Birds has generated over a billion dollars since its launch in 2010. Before Angry Birds was a gleam in Rovio’s eye, Seattle artist Juli Adams had created a series of funny bird drawings, which Hartz Mountain wanted to use for a new line of pet toys.Juli Adams Angry Birds Toy
Hartz and Adams entered into a 5-year exclusive agreement with an option for renewal. The agreement gave Hartz certain limited rights including holding and enforcing the Angry Birds trademark, but stated that ownership of the Angry Birds intellectual property would remain with Adams. In March of 2007, Hartz filed the ‘Angry Birds’ trademark application for “pet toys.”
Then, in 2011, after the Angry Birds game exploded in the market, Rovio began expanding its product line. Rovio received trademark protection for multiple products types in twenty-three other trademark categories but Hartz Angry Birds trademark blocking Rovio from entering the pet toy. To resolve the issue, Rovio and Hartz entered into a licensing agreement, without consultating with Adams. Hartz dropped Adams’ characters and stopped paying her royalty checks. Then, when the Adams Hartz agreement ended in 2012, Hartz failed to renew it and never reverted the intellectual property back to Adams as required by the contract. Adams received her last check in 2011 for $40.66, while Hartz continues to receive millions of dollars in royalty payments from Rovio. Adams sued Hartz Mountain for breach of contract and trademark violations.
How does the artist compete against corporate attorneys?
While we don’t know the details of Adams’ negotiation, she probably didn’t have legal representation as evidenced by her paltry royalty payments received prior to Hartz’ dropping her characters. Adams only received $11,228.59; hardly a sum that one would expect from a corporation who’s products are in every pet store and grocery chain in the United States. Adams is lucky, there is enough potential money in her case to warrant a lawsuit. Most of the time, the artist just has to accept the loss.
So how can an artist negotiate effectively if hiring an attorney is too expensive?
One approach is to find an attorney that will perform a contract review only, rather than be part of the negotiations. It will take far less time for the attorney to review the document and so is relatively inexpensive. Ideally, after the initial negotiations, the attorney will review the first draft, making suggested changes, revisions and possibly suggest negotiating strategies or tactics. When the final agreement is ready, have it reviewed again prior to signing. At the very least, the contract review will let the corporate attorneys know that you have legal representation and to not add anything too one-sided.
Alternatively, there are several non-profits whose mission is to specifically help artists in legal matters, such as Cannonball or Volunteer Lawyers for the Arts. These organizations will help negotiate agreements either for free or a small fee. Also, some of the larger law firms have pro-bono programs in which they provide free services for individuals and small businesses. Some state law Bars encourage every attorney to spend a certain amount of hours each year providing pro-bono services, making it more common than people realize. In some cases, the company might help litigate a matter.
Networking with lawyers can also be beneficial. Meet enough attorney and you will either find one to take on your negotiation or be referred to an attorney that will. Locate small business or art law related professional organizations in your area. Most hold seminars, luncheons, or “happy hour” events regularly. Also look to the local law schools. Most have student associations, such as Law Reviews, also hold various social events. Just having someone to whom you can ask questions or give advice can make all the difference. A good contract will go a long way in assuring you receive what you are promised.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.