When Do You *Really* Need a Lawyer? And Other Contracts Questions Answered, With Entertainment Lawyer Henderson Cole

Henderson Cole found his way to entertainment law the way most people find themselves in their jobs — unexpectedly. As a writer with a background in working in the music industry, be it at MTV writing interviews or at record labels in A&R, Henderson found he had a knack for creating contracts, plus lots of musician friends who could use a lawyer, but couldn’t necessarily afford one. Henderson decided to become an entertainment lawyer, and in the last five years since Henderson made law his focus, some of his clients like MJ Lenderman, Wednesday, Bartees Strange, and Oso Oso have risen to the top of the indie music scene.

We spoke to Henderson about his path, how to protect yourself during contract negotiations, when freelancers should get a lawyer, and what the biggest challenges artists are facing these days when it comes to protecting their work.

Freelancers Union: I’d love to hear how you got into this line of work, becoming a lawyer and then representing artists as well.
Henderson Cole: I found out at a certain point I have a talent for something that a lot of people needed within my local creative entertainment scene and I tried to fill that gap. Any time you’re working in a creative industry it’s a lot harder to make money; you’re up against a lot of more difficult forces, corporate forces, or people trying to compete with you who want your job and don’t need to get paid. I was like, “Ok, if I can do this law thing and help these people, then they’ll do better, and I’ll do better.”

FU: You mentioned you felt you had a talent for something that a lot of people needed help with, is that writing contracts?
HC: A lot of entertainment law is interfacing with different people, connecting people, having ideas where you can say, “Look, you’ve worked with this label, what about these other labels?” And then a lot of it is negotiating. So I was always really good at negotiating and talking my way through things. It’s way harder when it’s your own life and when you’re negotiating for yourself. 

FU: At what point do you really feel like artists or freelancers should get a lawyer involved?
HC: If you don’t have any money, it’s a very different situation, because you have to do the best that you can. Maybe you can find a sympathetic lawyer and get a 10-minute call with them. I’ll tell people, reach out to more successful people you know and ask,” Does this look like what you’re doing?” There’s three parts to when you should have a lawyer:

1. If the contract or the work arrangement is worth a lot of money. Then you should definitely have a lawyer. Because the risk of this all going wrong and a lot of money being on the line is worth the benefit of paying a little bit of money to protect it. If the contract isn’t worth a lot of money, then it becomes harder, because you don’t have that much money coming in. 
2. If it’s important for you creatively or reputationally. You might want a lawyer even if you don’t think it’s worth a ton of money, because this is your big chance.
3. If this person feels sketchy, or somebody warned you that they don’t always pay on time, that’s where you should definitely either start talking to a lawyer right away or have that in mind right away. Because if things get worse, and then you call a lawyer,  by that point they might not want to take it on.

Photographers I work with, I’ll try and set them up with an invoice that also says, “I own the rights to this, don’t use it in an advertisement,” and some basic points. Then at least they know those points, so when contracts come up, that’s what they’re going to talk about other than money.

FU: A big thing we hear about is work for hire agreements, so if there’s any advice you can impart about that.
HC: When it comes to work for hire, that usually is referring to the ownership of whatever you created. That’s when you hear about artists owning their masters, or photographers owning the negatives. If you do a work for hire, the person who’s hiring you is treated as the creator and owner of everything, so that’s not ideal, but sometimes that’s the relationship you’re going to be in. The other half of the equation though is their rights to use it. You could be the owner, but if you give them all the rights, then it doesn’t really matter you’re the owner because you already gave up the rights to use it in an ad, you gave up the rights to use it in an NFT. And on the other side, I’ve signed work for hire agreements where it’s a work for hire, but there’s limitations on what they can use it for. The rights could revert back to you over time, or it could be that they can’t use it for certain things. I’ll have people list out certain types of industries that they don’t want to be associated with. Or let’s say you’re a photographer and someone hires you, you could put into the usage you own the photos, but if they use them on merchandise, then you have to pay me a percentage.

FU: What do you think is the biggest challenge facing artists these days when it comes to protecting their work?
HC: I would say the biggest challenge is people imitating your work, whether through it’s AI or not, and trying to get away with it. In some states, it’s a little easier, where there’s a quick process to file a lawsuit. But the problem is that it’s so expensive and takes so long that it’s almost never worth it to a lot of people to enforce these things. If somebody designs a t-shirt and a company does 100 versions of it, you’re going to take a lot of them down, but you’re probably never going to get that money. So one challenge is trying to enforce that, while also realizing that there’s going to be a certain amount that you can’t control. And when they’re up against people that are using AI instead, saying, “This is real work, I think that I did a better job on it than the computer will. I can connect with people.” Embrace the human aspect of it…This is a big thing in music right now, people are using AI to imitate bands and creating big bands.

FU: I saw that AI Southern band that was in the news.
HC: That band, they’re never going to have a real fan base because they aren’t real, but it is taking money out of the hands of other artists, so that’s frustrating. But how can we not just throw our hands up and give up? There are a lot of companies and creative producers who don’t want that. So if you find people you like working with, build those relationships.

FU: Like in that book Mood Machine by Liz Pelly about Spotify…I read an interview with her where she said the solution to a lot of this is going to shows and meeting people.
HC: I’m mentioned in that book because I had worked with UMAW [United Musicians and Allied Workers]. I was trying to help them with reforms. That’s one thing people on your site probably already know about is Freelance Isn’t Free. Different states have a lot more protections than others and if you live somewhere where there aren’t good protections…yes, fight back with what you’ve got, but also fight for those protections. If you can get Freelance Isn’t Free in your state, or you can get a stipend from your state for art, that can make a huge difference in the long term.

FU: I saw Deerhoof is taking their music off Spotify. And I wonder, should we all not be using it? But then there are some artists who do rely on it, so it feels so tricky.
HC: It’s not an option for everyone, but also, I’m glad people are making the point who can. There are certain stances that some freelancers can take and some can’t. If you have some success in your career, it’s even more important for you to fight for these things. Fight for in your contract that you’re paid a certain amount upfront and a cancellation fee and fight for halfway through the project you get another quarter of payment. And then the smaller artists, the smaller freelancers who are starting out, they can at least be aware of what’s going on and then use those bigger contracts to their advantage.

FU: It sets a good precedent so that when somebody else asks for it, the client isn’t like, “That’s insane.”
HC: I’ve had people do that too, when one year they’ll ask for something and [the answer is] no way, and then the next year you ask for it and they say, “Uhh fine.” If you keep on them, maybe the situation changes, maybe they value you more, you never know.

FU: What is the number one thing you look for when reviewing a contract? What is the language you absolutely want in there and language you absolutely want out of there?
HC: One thing I have been trying to get done is getting the payments over time. Especially if it’s a lot of money over the course of the contract, even if they hold a big chunk of it until you’re done. And putting in limitations on exactly what you need to do [when]. Are there strict time limits? It makes it a lot easier to do your job but to avoid having those troubling conversations down the line. If you realize too late the timeline doesn’t work, you’re in trouble. As far as things I definitely try not to have in there: I do like to have limitations on uses like I mentioned. If you write a book, you want to keep the rights to the screenplay if possible. If it’s not exactly what we’re negotiating here, I don’t want to give away anything extra, unless they’re willing to pay more. 

FU: What are other ways artists and freelancers can protect themselves, outside of having a lawyer?
HC: Associations like yours that provide information help a lot. But also talking to people a little higher up in the industry. Especially if you haven’t heard of the company, find other people that have worked with them. Even if you have no connections to them at all – reach out to everyone listed on their clients page…Especially as a freelancer, sometimes you’re brought in to do a specific thing and you don’t really know what the bigger picture is. 

FU: Any negotiation tips?
HC: I tell people that contracts are the rule book you’re trying to set up; there’s always negotiation on top of that. So there’s certain things you might get into the contract, there’s certain things you won’t, and certain things that you’re going to have to lean on over time. If given the opportunity to say your number, always go a little higher than you think you deserve, because number one, it shows you think you’re valuable, but also you don’t want to offend them by going crazy high. The first number they’re almost always going to say either “Has to be lower, or yes.” They’re never going to be like, here’s more money, so definitely try to ask for a little more than you think you’ll get, and that way if it goes down you still feel comfortable. Because you want at the end of the day not to accept the deal just because you want to get it over with and you aren’t happy with it, because a bad deal is worse than no deal.

It’s always better to negotiate and if you get up to a point that you can’t improve it anymore, you want to sign it or walk away. You have to be able to walk away if it’s not good. 

Henderson Cole is an entertainment lawyer who has worked through his firm Henderson Cole Law to represent musicians, producers, photographers, journalists, filmmakers, and other creators since graduating from Cardozo Law in 2015. Henderson is also a music business researcher and has worked on music industry reform proposals for Congress. As a creative person himself, he has written, filmed, and recorded a variety of his own projects. He incorporates all of this knowledge and experience when advising artistic clients.