Three Short and Unrelated Matters
Three short and unrelated matters are tackled this month: Contractual Relationships, Public Lending Right and Solicitors’ Advertising.
How many contracts have you made today? Bet you travelled on a bus, tube, train, bought some petrol, maybe bought some food, cigarettes, a drink or two, paid the rent – contracts? Yes. For the past eight years in this column we have been persistently tackling (amongst other things) the contractual side of professional practice. Even so, one fundamental issue continues to be raised: What is a contract? – though usually the form of question is: What is a legal contract?
For those who do not immediately spot the tautological use of the adjective ‘legal’, an explanation is needed. English law has for a thousand or so years developed recognition of and support for bargains struck by folk, howsoever they have been made. That is still the position. But what the law has done, particularly in the last hundred years or so, is to create special rules for recognising and supporting certain bargains made in certain circumstances. For example, deals made by minors and those with serious mental illness are not generally recognised by the law; nor are arrangements requiring illegal things to be done (i.e. a crime to be committed), nor where fraud or misrepresentation has induced a party to make a deal. And two notable types of deal have been subjected to special restrictions; sales of real property (leaseholds and freeholds), and assignments of copyright – they must be made in writing in order to attract the full support of the law.
What the law does, therefore, is to leave almost everyone almost free to make deals about most things in their own way; it provides a bottom line – a safety net – of rules for sorting out disputes which inevitably arise when promises are broken and/or fail, and specific performance does not occur. So, what are the ground rules?
Very simply, a promise intended to be kept in exchange for a promise intended to be kept is all that’s necessary. I promise to buy your piece for £50 (offer); yes. I promise to sell it to you for £50 (acceptance). Or, at auction, I bid £50 for that piece (offer); yes, I knock it down to you for £50 (acceptance). This game of offer and acceptance is generally allowed to be played orally, in writing, by conduct, or by a combination of all three. What confuses many people is proving that the offer/ acceptance (contract) did in fact occur, or, more frequently, what the details of the agreement (contract) were, i.e. what the terms and conditions of the contract were. We had an oral agreement, but how can I prove it? Well, the legal bottom line on this one is that the law looks at all the available evidence and then decides what might have happened – even where the only available evidence is a statement made on oath; my word against theirs.
To avoid or minimise all of these risks, most business folk put all their negotiations, preliminary agreements, final agreements, variations and modifications into writing. Sometimes it is simply a letter (keeping a carbon copy) confirming a meeting or phone call; or an exchange of letters; perhaps the joint signing of a written agreement; or even a document drawn up and typed by a Solicitor, tied up with green/pink/white ribbon, signed by both parties over red seals, in the presence of witnessing signatories, and delivered to each party for safe deposit (i.e. signed, sealed and delivered). The forms of agreement/contract we have explored/suggested and published here since 1976 have all been endeavouring to do precisely this: thus, the Artist’s Contract of Sale, Commissioned Design Agreement, Commission Agreement, Commission And Sale Agreement, Consignment Agreement, Exhibition Agreement, Agency Agreement – even the Copyright Licence – all simply record for both sides at the outset what they have promised to each other. Finally, therefore, written evidence of Agreement/Contracts does not make the parties any more or less legally obliged to each other: they will be bound anyway (if they have in fact exchanged binding promises).
Public Lending Right
The features of the statutory PLR Scheme are not commonly known, and the following note of its key facets may prove useful to visual artists who have been, are, or will be, involved in publications. PLR is particularly relevant to photographers and illustrators, but is equally important to any author or, as is usually the case for visual artists, co-authors.
- The Artist/Author/Co-Author must register with the PLR office in order to be eligible for payment.
- Co-Authors must register jointly: books with four or more Co-Authors are not eligible for the scheme.
- Ownership of Copyright is irrelevant.
- The Author, or at least one of the Co-Authors, must still be alive and be a British citizen in order to be eligible for registration.
- The Artist’s name must be published on the title page of the book.
- The book must generally be at least 32 pages in length, and at least 24 pages in the case of poetry and drama.
- If the Artist is Co-Author, the payment is split with the other Co-Author(s) according to percentages agreed between themselves.
- PLR payment is currently 1.02p per loan, but payment is only made where £1 or more is due on the loan of one book; £5,000 is the maximum payable.
It is important for all Artists involved in publications to note also that the literary Author cannot register alone; PLR will only allow registration if all the joint Authors register jointly.
Legal Advice and Help
Artists and Arts Administrators have for many years needed to know the names of Solicitors experienced in dealing with visual art problems. The Artlaw organisation identified an unmet need for the provision of such legal services about ten years ago, and in 1978 established Artlaw Services in order to meet those (and other) needs. A major impediment to matching an appropriately experienced Solicitor to a client’s particular needs was the Law Society’s prohibition on advertising by Solicitors.
However, on October 1 1984 that prohibition was lifted to enable Solicitors to advertise – though not, it is said, to tout for business – under certain prescribed rules. The importance of this change for the arts generally and the visual arts in particular is that arts practitioners in the field may well have been serviced by Solicitors experienced in the field whose names have simply been the subject of grape-vine gossip. Readers may feel that their Solicitors might usefully be encouraged to advertise their relevant experience, which may well in turn be of benefit to the visual arts community as a whole.
Advertising is limited to the press or radio, by direct mailing to Solicitors’ professional connections, and on Solicitors’ premises. Adverts must not be inaccurate or misleading, nor refer to the quality of the firm’s service, nor suggest superiority over other firms, nor criticise or compare its service or charges with others. A firm’s experience in a field can be advertised, but no special expertise or specialism may be claimed. It will be interesting to see whether the art press begins to carry advertisements from Solicitors experienced in the field, and it may be possible for this column to assist with this in some way in the future. Readers’ observations would be most welcome. Meanwhile, readers who might need advice and help from a firm experienced in the field may wish to know that there is at least one firm whom I know are experienced in this area to date and are in fact advertising nationally in the art press; they are: Mark Stephens, Roslyn Innocent and Robin Fry, of Messrs. Stephens Innocent. St Mary’s Clergy House. 2 Whitechurch Lane, London, E.I. Telephone 01-377-0464. [NB: this information appeared in the original article (published 1984) and may no longer be valid]
© Henry Lydiate 1984