No one likes confrontation. Occasionally however an artist will have to manage a professional dispute. It may happen, for example, that you have been awarded a commission, and the commissioner decides to pull out of the agreement. You may come across an unauthorised copy of your work on an Internet site. The purchaser of a work may be very slow in paying for it, and appears to be avoiding you. In situations such as these, you will want to vindicate your rights. In other circumstances you may be accused of being in the wrong, and you may need to defend your position.
While it is impossible to avoid all prospect of becoming involved in a dispute, it is possible to minimise the chances of a dispute occurring. It is also possible, with proper handling, to prevent a disagreement from escalating into something more serious, and to contain the damage resulting from a dispute.
The following steps will help to avoid the possibility of disagreement:
* Be clear about your position in all dealings concerning your work. Articulate your expectations fully. Do not avoid issues you feel may be sensitive – they are the very ones which will cause problems later. For example, the ownership of the rights in a work is an issue that is often inadequately dealt with in commissioning agreements – will the commissioner own all rights, or merely have a licence to use the work for specific purposes? The artist may want to insist on retaining the copyright, but may be afraid of upsetting the commissioner by stating this requirement. The resulting agreement may lack clarity on this point, almost certainly leading to difficulty afterwards.
* Reflect all agreements in writing. There are two good reasons for doing this. The first is to provide proof of the agreement. Many disputes involving artists turn on one word against another, because there was no witness to the verbal agreement. In these circumstances it is impossible to estimate the likely outcome of the dispute. The second reason is that writing down the elements of an agreement forces both parties to address their minds to the essential points of agreement. This reduces the possibility of misunderstanding. It is not necessary to have a solicitor draft an agreement in every case. A simple letter from one party to the other, undisputed at the time, is always vastly superior to a verbal agreement.
* Be realistic in what you expect from an agreement, and in what you can deliver. Do not, for example, under-price your work and regret it afterwards. Do not commit to a very tight time-schedule in order to please a gallery or a purchaser. Either the work will suffer, or you will fail to deliver.
* Envisage the possibility of a dispute. Inform yourself about protecting the rights in your work. Keep proper records. Make and seek payments promptly and in a businesslike manner. Good professional standards will help protect you against unnecessary conflict.
As soon as you perceive that you are embroiled in a disagreement, taking the following steps may help to prevent it from escalating into a full-blown dispute and may contain the damage that can be caused:
* Accept that a difficulty exists and act quickly. The sooner the problem is addressed, the less likely it is to escalate. The first person to seek a method of resolving the dispute often has an advantage.
* Decide whether or not you need the immediate advice of a solicitor or whether you will first attempt to deal with the problem yourself. If you are the party making the complaint, then there is little to be lost in writing a letter to the other party, setting out the problem and indicating that you will seek appropriate redress. The language used need not be formal or confrontational. The letter can be used to state the problem simply and to indicate that unless it can be resolved satisfactorily; further action will have to be taken. A sample letter can be found at the end of this text. Depending on the response, it may be possible to negotiate a satisfactory outcome without the help of a solicitor. The outcome need not involve an admission of liability, nor even payment of money. If it suits both parties, it can consist of the purchase of a work, or the return of a work, or some other “payment in kind”.
* One word of warning however. If you are setting out terms of settlement of a dispute in writing, unless they are final terms accepted by both parties and you are simply confirming them, then any correspondence should be headed “without prejudice”. This prevents the other party from using this correspondence against you in any subsequent legal action.
* If you are accused of some wrongdoing, and especially if the penalty or remedy may be substantial, it is wisest to consult a solicitor at an early stage. If however you are quite sure that the matter is a minor one, and you are willing to acknowledge your responsibility, then do so as quickly as possible. Often an apology and a promise to refrain from repeating the offending act is all that is required.
Consulting a Solicitor
When you decide to consult a solicitor, these pointers may be helpful:
* If you do not know a solicitor, do some investigating to find one with appropriate knowledge and experience. A large firm will usually have the expertise, but may also be more expensive, and unwilling to take on a small case. If you have to choose a firm without knowing whether or not it has the relevant expertise, then telephone, explain the nature of your problem and ask if this an area of law they practice. If you are happy with the response, then make an appointment.
* At the first meeting, bring with you a written summary of the facts of the dispute, which you can leave with the solicitor. Bring, in addition, all relevant documents and correspondence, and an extra copy, if possible, for the solicitor. This will save time.
* Be clear at the end of the meeting exactly what the solicitor proposes to do on your behalf. Be clear also about the charges. Solicitors are obliged to write to you setting out the basis on which they calculate their fees. For cases that are charged on a time basis, the rate of charge will probably fall in the range €200-300 per hour, plus VAT at 21%, and direct expenses (outlay).
* If for any reason you feel unhappy with the advice you have received, or unsure that the solicitor is the right person to represent you, then simply write or phone and say that you have decided not to pursue the matter, at least for the present, and ask for a bill for the services rendered. Then start again! It is better to lose a little time, and the cost of a consultation, than to struggle on in a professional relationship in which you feel uncomfortable.
Legal Procedures for Resolving Disputes: Litigation
In June 2006, Robert Ballagh was successful in a High Court action against the Irish State for losses he incurred because the State was late in implementing the European Directive on the Artists’ Resale Right. He was awarded damages, plus the costs of the action. His case was something of an exception. Not many cases involving artists come before the courts. This is primarily because unless the case is absolutely cast-iron (and if it is, it should not come to court at all), the artist cannot risk having to pay the legal costs. The party who loses an action must normally pay not only his or her own costs, but the costs of the successful party as well.
Before embarking on any form of litigation, your solicitor will attempt to resolve the dispute by engaging in correspondence and discussions with the other party or, more usually, with his or her solicitor. In the event that negotiations are not successful, before initiating formal proceedings, your solicitor will advise you of the chances of success in the action, and the costs you will incur in the event that you lose in court. The size of the costs will depend on the nature of the case, and the court in which the action is taken. Needless to say, no decision to litigate should be taken without this information.
The court in which your action will be taken will usually depend on the size of the claim, and of course, the smaller the claim and the lower the court, the more modest should be the legal costs.
The lowest court for civil claims is the District Court. It hears claims valued at up to €6,348,69 (the equivalent of £5,000). The Circuit Court hears claims valued at up to €38,092.14 (the equivalent of £30,000). Larger claims, and certain specific types of case are heard by the High Court. The Supreme Court is principally a court of appeal from the High Court on questions of law.
Other Forms of Dispute Resolution
It is not always necessary to go to court in order to bring a dispute to a conclusion. There are other possibilities:
1) ADR (or Alternative Dispute Resolution) is growing in popularity, as an alternative to litigation. There are two types of ADR: mediation and arbitration.
In mediation, both parties agree to use a trained mediator to help solve the dispute. One of the advantages is that the parties themselves become involved in devising the solution. The lead-in time is short and the process itself is normally completed within a day. Mediation is a great deal less expensive than litigation. It is also confidential. Decisions made in mediation are not legally binding, unless the parties agree to make them so. It is said however that 80% of mediations are successful, in that both parties accept the decision reached, and act upon it.
Arbitration occurs when both parties agree to appoint a suitably qualified arbitrator to determine a dispute. Arbitration is more formal than mediation. The Arbitration Acts 1954-1998 govern the process. The decision of the arbitrator is binding. Many contracts contain an arbitration clause obliging the parties to submit to arbitration in the event of dispute. In contrast to court litigation which occurs in public, arbitration is conducted in private. If the parties agree, the arbitrator can make his or her decision on the basis of documentary evidence, without the need for an oral hearing. Arbitration is also less costly than court litigation, but usually more costly than mediation.
It is not necessary to be represented by a solicitor in either process, although representation is a distinct advantage in the case of arbitration. A number of solicitors firms are enthusiastic about ADR. You can identify these through an internet search.
2) It is also possible that your dispute will come within the remit of one of the several organisations and agencies that process different types of complaint, mainly by consumers. These include Ombudsmen (such as the Financial Ombudsman) and Regulators (such as ComReg). Some trade and professional associations, such as the Law Society of Ireland, and the Advertising Standards Association, maintain codes of practice which they enforce against their members. Commissioners, such as the Information Commissioner, and the Data Protection Commissioner also handle complaints concerning infringements of rights to information, and data protection, respectively. The Labour Relations Commission offers a range of services relating to disputes in the workplace, including mediation.
Information concerning these organisations and agencies can be obtained from the Citizens Information Board
Sample Letter of Complaint
Dear Mr/Ms __________
I am an artist and the author of the work entitled ”________“. It has come to my attention that you have posted a copy of the work on your website: www.xxxxx.com. As this use of the work was not authorised by me, it constitutes an infringement of my copyright.
In order to avoid formal legal action, you should let me hear from you by return, confirming that you will remove the work from the site, and will compensate me for the infringement. In relation to the latter, please let me know for how long the work has been exhibited on the site, and I will measure a reasonable fee.
By Linda Scales
Linda Scales is a solicitor and a copyright specialist. She advises a number of publicly-funded arts bodies and institutions. She also lectures in media law topics in the School of Art History and Cultural Policy at UCD. She is the author of a number of articles on arts-related legal issues, including the Guidelines for Board Members of Arts Boards, published by the Arts Council in 2006. Linda is a co-founder and board member of the Copyright Association of Ireland, and the Irish Visual Artists Rights Organisation.