What’s Normal?
“What does a contract normally say?”
We hear this question all the time. When our creative clients are stepping into new territory—licensing their artwork, sharing fees with art consultants, or providing data to academic institutions—they want to know what the other side expects to see in terms of fees and projections.
We also hear “Oh, that’s normal” from counterparties. Usually, when they want our client to sign a contract that isn’t in our client’s best interest.
We know the average royalty for your industry. We know which provisions are typical. We know what the other side wants to see. We can explain all of this and more to you. But then we’ll tell you why we don’t care about “normal.”
We don't care about normal.
In a contract negotiation, whatever is deemed "normal" usually benefits the more powerful party—the person or entity with more money and access (e.g., the corporation, university, collector, gallery, institution, etc.).
Generally, the more powerful party won’t offer to do something that’s in the less powerful party’s best interest. Always doing what’s in their best interest is how they got to be so powerful! But now that they’re in a position of power, they can afford to be more imaginative. The more powerful party always has the power to do what's right instead of what’s typical.
Ask for what you believe is right and fair – don’t ask for what’s “normal.”
You are not average. Why should your contract be?
You’re a creative person. Your contract concerns creative work. Why would you use an average agreement to set terms that force you to conform?
If you’ve gotten to the point where you’re being creative as a career, you probably have tons of experience with being not average. Weird, strange, odd, or different – if you’re creative, these words probably feel familiar. Plus, whatever makes you weird, strange, odd, or different is probably what attracted the other side to you in the first place.
Yet, you’re supposed to be OK with average when their contract is in front of you? That doesn’t make sense.
Plans for the future have no bearing on this situation.
If you push back and the other side tells you this is the way things have to be for now, but they’ll take your thoughtful feedback into account in the future, pretend you didn’t even hear them.
In negotiations, the inclusion of promises about the future is probably intended to distract you. This contract affects you and your work. Hypothetical future changes that benefit future you or other people are not persuasive. What's happening now is all that matters.
Stay focused.
They can do better.
“Common” may be used to mean average, basic, or ordinary. Yet, when my Southern grandmother called someone or something “common,” it wasn’t a mere slight. It was a harsh insult for a person devoid of manners and taste.
My grandmother taught me that most people usually don’t act right—don’t use their manners, don’t speak kindly, don’t wear an appropriate outfit, don’t respond with grace—because they don’t know how to act right. But she also taught me that ignorance is no excuse after a person is told what’s up. That’s why our first approach is always gentle; we assume the other side doesn’t understand the error of their request, and will be ready to do better once they understand the full picture.
When someone pressures you to accept a bad situation because it’s “normal,” tell them how to do the right thing, then expect them to do better.
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As lawyers, we aren’t interested in what’s “normal.” We’re interested in what’s best for our clients and their creative fields. We’re interested in what’s fair, we’re interested in what’s right, and we’re interested in a deal that benefits both parties. What’s fair and right in creative industries? It’s rarely what’s “normal.”
Ready to negotiate a better contract with lawyers who want something better than average for you? Schedule a call – we’d love to hear about the different, odd, wonderful work you do!
