I have a client who ordered art from me that they asked be private between us, due to it's embarrassing nature. The extent of the agreement was "Don't post this online" to which I said "Okay."

My commission rate is less than 50 dollars. After completing their work, I discovered that this client is a very wealthy and divisive politician. This presents challenges and risks to myself that, had I known prior, would've changed my price to reflect the burden.

I have contacted them and made clear that I must increase my price to 150,000 USD, or I will have to refund them because I cannot reasonably secure the art against a sophisticated attack that a political opponent can mount, and may just release it to the public to eliminate their interest in me, for my own safety.

They have threatened to sue me for defamation and black-mail.

Do they have a legitimate case against me if I release the art and give them a full refund? I won't interpret any answers as legal advice, I am only doing preliminary research while I save money to consult an attorney.

Addendum: It's worth noting that the "NDA" in question was very weak and never specified a duration, penalties, scope, and was never in formal writing, merely as a casual email exchange.

  • What kind of "sophisticated attack" can they mount, and why would they? It is in their interest to keep the deal quiet. And yes, they will have a case: contract has been made, and how wealthy and politically big they are is irrelevant. – Greendrake May 2 at 1:53
  • @Greendrake - The attack would come from their powerful opponents. It might not be sophisticated though, they could simply rob or kill me. All for less than 50 dollars? Surely this is the extent of what they could sue me for in damages, correct? The value of my secrecy was, to them, worth only that much, so that's how much they should be limited in recovering – anonymous May 2 at 2:02
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    $50 is their consideration for the art. It has nothing to do with the non-disclosure term of your contract with them. If you violate the term, they would sue you for the actual damages caused by your disclosure (e.g. reputation loss etc.), which would be a different figure than $50. – Greendrake May 2 at 2:18
  • @Greendrake - If that is true, then isn't the nature of this contract onerously one-way given the NDA aspect was worth $0? Surely I have no obligation at all then? – anonymous May 2 at 2:21
  • Sounds pretty sketchy all around. Although I'd personally prefer to see the work released, I suspect that a court would look at your 3,000% post facto price increase, assume that you're basically an extortion artist, and punish you accordingly. Pigs get fat. – bdb484 May 2 at 3:19
up vote 3 down vote accepted

You have a contract - they have fulfilled their obligation (they paid you), if you do not fulfil their obligation (not to post it online) then you are in breach of the contract. Your obligation continues even if you gift the money back to them.

If you breach the contract then they can sue you for the damage that they suffer. Presumably this would be damage to their reputation and for a public figure this could run into millions of dollars.

In demanding additional money from them beyond what you are legally entitled to you are, at least, flirting with the crime of extortion/blackmail. This would not be a matter for them to sue you for, it would be a matter for the DA to prosecute if they chose to make a complaint.

There doesn't seem to be a defamation issue here because you are not stating anything that isn't true.

Now, the extent of the agreement appears to prohibit you posting it on the internet, however, the spirit of the agreement is that you will keep the information secret in all respects - that is likely how a court would look at it.

Of course, if someone does steal the information from you then you haven't broken the agreement but you would probably have to prove that it was stolen when they sue you.

  • The incredible liability to me if the information is stolen, on the order of millions, is precisely why I would've asked for a more appropriate amount, if not outright refused. Wouldn't they have had the duty to disclose their position to me, and the risk involved? I'm now left guarding a secret worth millions, with no profit because I must now expend resources to protect the secret. Surely such a one-sided contract would be struck down, and my demand for additional money reasonable given the situation (what is 150K when I risk millions?) – anonymous May 2 at 3:20
  • @anonymous What information can be stolen from you? The art, the amount paid for it, and who the client was? How would $150k help you to keep the info any more secure than $50? – Greendrake May 2 at 3:28
  • @Greendrake - It's a matter of risk. $150K wouldn't help me deliver a picasso more than $50, but given the sheer magnitude of the risk involved should I lose it, it's absolutely reasonable to ask for more. – anonymous May 2 at 3:30
  • I don't see how a promise not to put something online obligates you to "protect the secret." If someone else steals it from you and posts it online, where does your liability come in? If you leave it sitting around your house when a newspaper reporter comes through, where does your liability come in? If you call up a reporter and tell him about the picture, where does your liability come in? – bdb484 May 2 at 3:45
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    @jqning An LD clause is a way of pre-determining the damage that will be caused: absent such a clause the damages you are liable for are actual damages suffered. – Dale M May 3 at 4:21

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