INDEPENDENT CONTRACTOR AGREEMENTS

NEGOTIATING TIPS FOR CREATIVE CONSULTANTS

By Mary Barroll, B.A., L.L.B.
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 Introduction

The cultural industry is an exciting sector to do business in, because it thrives on creativity, collaboration and innovation and often unites a host of individuals, companies and institutions to work together in new ways towards a common goal.  The work is often project driven and therefore relies heavily on consultants and independent contractors who collaborate and provide services for a limited period of time to complete the project. The nature of the services performed, and the goods provided, by consultants active in the cultural industries can vary greatly, depending on whether they are providing artistic or creative services or work, developing software or designing technological products such as websites or databases, or whether they are providing strategic, marketing or business advice or services.  The nature of the organization that is contracting the consultant’s services can also vary widely depending on whether it is a government institution, not-for-profit organization or commercial enterprise.  All of these elements will influence the relationship between the consultant and her client.  Naturally, the specific elements of the relationship will influence the form and structure of the contract the consultant enters into with her clientele.  In most cases, however, the consultant will provide its services or goods to the client under a contract known as an “independent contractor agreement”.     

The independent contractor agreement is distinct from a traditional employment agreement.  While it is impossible to discuss every possible variation of the form and content of an independent contractor agreement used in the cultural sector, there are some general principles of law and business that should be kept in mind when either the client or the consultant considers entering into a contract.  Some contracting and negotiating tips are provided below.  They are intended to be used for educational purposes only.  They should not be construed as providing any legal advice.  Anyone contemplating entering into an independent contactor agreement should consult an experienced lawyer for advice and guidance.  However, in general, most independent contractor agreements include fundamental elements that are important to understand in order to allow each of the parties to fully appreciate their rights and obligations and to ensure the relationship is mutually beneficial and successfully achieves its purpose.  Below, I briefly describe the typical elements in an independent contractor agreement and their function in the agreement.  It is my hope that, by understanding how the provisions function and their purpose in the agreement, the consultants and their clients will be better equipped to navigate their own business negotiations and enter into agreements that protect their respective interests and better reflect their relationship and mutual understanding of their rights and obligations. 

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