The Week in Arts

Taking Care Of Business: Q&A With Ben Kerr

You can usually pick Ben Kerr out of an artsy Seattle crowd: in a sea of beanies and beards, he’s the clean-shaven guy in a tailored jacket with lightly salt and pepper hair. He’s sipping an old fashioned without a cherry. Kerr’s a lawyer, and unlike a lot of guys in his biz, can keep up in a conversation about the latest art openings in town—and he won’t talk over your head when it comes to topics related to law.
Kerr has been an attorney for nine years and now runs his own law firm on Capitol Hill.  A portion of his practice, he says, is devoted to clients in the arts to whom he offers a reduced fee structure. He can’t really tell you who, but he’s represented many of Seattle’s well-known artists and has been increasingly active as a consultant for the local art community.
When I think of law and the arts, I usually go to big, heavy-hitters like Cariou v. Prince. Philosophical land mines. I don’t think about the little, everyday legal matters that need taking care of. That’s the kind of thinking Kerr wants to correct. He was recently invited to be a guest panelist at one of John Boylan’s standing-room-only “Conversations” held at Vermillion Gallery. There he laid out some of the practical aspects of working within the framework of “artist as entrepreneur.” While some members of the crowd wanted to sidetrack about sticking it to the man or steering clear of business and operating outside legalese, Kerr always brought the conversation back around to reality: There are ways to take care of yourself legally as an artist, and it’s not as scary as it seems.
In his words, “There are a lot of factors to consider and everyone’s situation is different. What I try to preach to people is that they need to educate themselves and understand what’s best for them and why.”
This month he kicks off a four-part series of presentations titled “Art Works Here” about art and business. The first talk is this Sunday and is devoted to “Business Issues for Artists.” Co-hosted by Jennifer Zeyl, each takes place at Canoe Social Club, which has a new space near 11th and Pike, around the corner from Neumos. At the talks, he’ll lay out some basics of what artists should know about insurance, contract, forming LLCs and more.

I asked him a few things on my mind.

How did you start working with artists as an attorney?
It really began when I started my own law firm a little over three years ago. I’ve been practicing law for almost 10 years now, but having my own practice allowed me the discretion to choose my own clients and put my legal efforts in the directions I deemed appropriate. I was always happier fighting on the side of the little guy and I think that artists are a group which have been largely underserved by the professions which traditionally support small business owners. Obviously, artists are not known to have a lot of disposable income, but I offered to meet with them for free and openly share any knowledge I had regarding how the law could help them in their careers. The way people have responded to this is really indicative of a need which exists in the artistic community in Seattle.

If you can, tell me the most interesting thing you’ve encountered while working with an artist client.
Sadly, I can’t say specifically. Attorney-client confidentiality and all that. Which is really too bad because some of the stuff that comes through the door is perfect cocktail party anecdote material. I will say this: I am at the point where it takes a lot for me to be surprised. Guns, sex, drugs, you name it—all in the name of art. An artist would have to come up with something pretty outrageous to beat some of the ones that I have consulted about, but I’m sure some will.

What are the business issues for artists you think are important to bring to the table?
I’ve met with enough artists to say confidently: three issues. First is a misunderstanding of the basic principles of intellectual property law, most significantly copyright registration. Artists often know that copyright law is a legal protection afforded to artists, but the number of misconceptions about how it works and how an artist can protect his or her work is an issue of genuine concern for me. Second, I think a basic understanding of contract law and how to interact with third parties in the marketplace as a business owner is lacking for many artists. An overview of the basics of contract law and some general business advice can be very beneficial. Finally, the issue of business entity formation. There’s a reason why most commercial entities opt to form a corporation or an LLC to operate in the marketplace. I believe many artists don’t understand the potential benefits this may have for their respective art careers.
What’s something that most artists should take care of that they probably never think about?
The most obvious answer is copyright registration. This is an incredibly simple and inexpensive way that artists can protect their work if another party misappropriates it. Artists do not need to hire someone to copyright their work, they do not need a lawyer for that. They can do it themselves at and for a nominal fee register large volumes of their work. If an artist does this before his or her work is misappropriated, the chances of successful redress are dramatically improved.
It would help an artist get money for images used without permission in third party advertising, for example? You mentioned once that it’s pretty easy for an artist to use Google’s image search to track exactly where all their images have been published online.
Third party misappropriation by something like an ad agency is a perfect example for discussion. You have an artist out there struggling to make a living who maybe has not yet achieved a degree of commercial success, but then they see something very similar—or identical to—one of their pieces being misappropriated by a large commercial entity. A sample from a song is used in a radio ad or a department store rips off a site specific installation piece to sell their fall collection of shoes.  What should an artist do in that situation? Again, it’s case specific, but if the artist takes the time to register their copyright they can be entitled to something called statutory damages (which basically means you do not have to prove economic harm) and also gives the artist attorney’s fees and costs if he or she is successful in a legal action. Those are two huge advantages an artist will not have if he or she fails to register the copyright of his or her work.
You’re a big proponent of artists filing as Limited Liability Companies. Why is that? Could something really terrible happen to me if I don’t?
Well, I’m a proponent of forming an LLC or a corporation if that’s the appropriate tactic for a particular artist. However, everyone’s situation is unique. The creation of a business entity, if proper procedure is followed, can insulate an individual and his or her assets from the liability that may be incurred as a result of artistic endeavors. If you follow the rules appropriately, then it may only be the assets of the business which are at risk if the business gets into trouble. If you are operating as a sole proprietor, which the vast majority of artists I know are, then if there is liability as a result of your business endeavors, that can result in personal liability for you. Imagine that a child falls from a piece of public art or a creative writer gets falsely accused of plagiarism. LLCs and corporations are a way that artists can possibly insulate from that type of liability, at least personally.
What are the common misconceptions about LLC and corporation formation?
Probably the biggest misconception is cost. Many artists assume that setting up their business as an LLC or a corporation is cost prohibitive. But really the hard costs for getting that done are only a few hundred dollars. I don’t mean to imply that a few hundred dollars is not a lot of money to some people, but people often incorrectly assume it will be much more than that.
Favorite lawyer joke?
People don’t know this but there are only three lawyer jokes which actually exist. The rest are true stories.

Image credit: Zachary Culler