Hey, Creative People, Contracts are Good for You!

Creative people--entrepreneurs, artists, performers, innovators--so often feel themselves gagging when it comes down to signing contracts. And it's not surprising; what's creative or spontaneous or fun about contracts? Huh, absolutely nothing. But unlike war (Good God, y'all), contracts are good for a whole lot of reasons.

Contracts are a sign of respect and accord. Of course, it feels icky to ask someone you like and respect to sign something. You might even feel like that person will be insulted. But remember, contracts are also known as agreements, not disagreements! You are actually bestowing the ultimate sign of respect on your co-venturer, vendor, or employee: you are saying, "Here's what I think we both expect. Please let me know if you agree, let me know if it's all worded right, and if it is, please sign it, so I know that we are on the same page. And if I am way off base, please let me know so that we can work together to come to an agreement." Because creating a code of mutual expectations demonstrates that you care about what the other person thinks. Of course, "adhesion contracts," do not fall into this category--these are the hardball "take-it-or-leave-it" contracts that benefit one party with far more practical leverage and ruin the good name of contracts negotiated in good faith.

Your creativity is valuable. Artists especially worry about the "crassness" of involving commercial considerations into their creative world. But artists and entrepreneurs make the choice to turn their creative output into a business enterprise. There are many accomplished artists and hobbyists out there who toil for nothing but the satisfaction to have created something from nothing. If this is to be your livelihood, you must accept that the exchange of intellectual property for money dates way back, beyond the time of the formal patronage system, and money, like contracts, is a sign of respect for your creative work. You likely don't complain when you have to sign a contract when signing up for your phone service or renting a car; why should an exchange of money or labor not be accompanied by a written agreement under any circumstance? Isn't your type of work as valuable as others?

Relationships change. As a lawyer, I have seen the rupture of relationships that seemed as entrenched as Facebook (and, before that, MySpace). But even family and close friends can discover, as time goes by, that goals, values, and expectations change. And what mattered little before suddenly matters a whole lot. And if it's not codified in a written agreement, resentment can build and even develop into litigation. One of our jobs as attorneys is to anticipate, as much as possible, the things that can go wrong. That is why we advise including a "Buy-Sell" clause in operating agreements, because business divorces happen every day. And that is why we advise clients to not try to make a contract shorter simply to avoid offending the person being asked to sign. People are not wilting flowers; they can handle a comprehensive agreement, and will be grateful when the time comes for the parties to the contract to consult the agreement, so they can remember where they found common ground in the first place.

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It is a common adage that transactional attorneys--those lawyers who draft contracts and other necessary documents--have the prospective goal of drafting to avoid litigation, and that business litigation is a retrospective response to a transactional attorney's poor drafting or a failure to adequately create a mutually beneficial agreement. However, that adage is a facile conclusion--the innovative impulse and the commercial impulse are always changing, and the expectations discovered prior to the signing of the contract may afterwards evolve wildly like creative inspiration itself. A signed written agreement between two parties undertaking an exciting journey should be recognized for what it is: a good start.

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