Principles of Contracts: You CAN Fight City Hall

Because this one deals a lot with the law again, the usual disclaimers apply: I am not a lawyer. This is not legal advice. This is one man’s opinion on how business is done. Always consult a qualified legal professional when seeking legal advice.

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Previous chapter: Embrace Your Inner 2 Year-old
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It’s come to my attention that in some of my business posts I’ve inadvertently fed an unspoken, and erroneous, business assumption shared by many people in the arts (and, frankly, most people in society at large). It goes something like this:

“Corporations are all-powerful. They have bigger lawyers than you do. You’ll never find a lawyer to take your case if one rips you off, so you’re just going to have to roll with it if your record label cooks the books, your movie studio subjects you to creative bookkeeping, or your publishing house pads their returns. You’re only the talent–you should expect to be the victim. The talent always loses.”

In other words, you can’t fight City Hall.

Not to put too fine a point on it, but this is a con. You CAN fight City Hall. And you can win. But you have to be savvy.

First Things First

When I say things like “You don’t want to be a test case,” as I did in my chapter on the Peggy Lee decision and its implications for artist contracts everywhere, it’s easy to hear that as reinforcing the erroneous idea I’ve delineated above–an impression for which I owe some of you an apology. It’s true that in untested areas of law, a dispute on a point that’s not entirely clear is a test case, by definition, and that these kinds of cases are a pain in the ass. It’s also true that these kinds of cases are, by their nature, uncertain in their outcome. However, by stating that being a test case is a pain, I don’t mean to advocate fear of lawsuits, or a strategy of folding before parties who have bigger lawyers than you do. Not at all.

What I meant to advocate, and what that chapter will more clearly advocate when these chapters are edited and collected in a book, is a basic principle which I’ll call “Defensive Business.”

“Defensive Business” has its analog in “Defensive Driving” rather than in “paranoia” or “social defensiveness.” You don’t have to be paranoid or live in fear to practice defensive business–in fact, paranoia will usually lead you to rash behavior that can get you into trouble.

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