Artists leave works with galleries under the most flimsy and informal arrangements.
Rarely are written agreements used to tell both sides where they stand, and as a result serious problems can and do arise: work is sold at the wrong retail price, agreed gallery commissions increase and artists are charged 'extras' for unforeseen gallery costs; unsold work is not returned when requested, gets lost, damaged or destroyed, and the major question which then arises is: who owns the work?
Every professional artist should know the legal relationship into which he is placing himself and his work, and the significance of it. There are five main reasons for leaving work with galleries and five different contracts should be used to clarify each situation for both sides.
Occasionally, galleries buy works outright for re-sale purposes and so artists should use the Artist's Bill/Contract of Sale (see Art Monthly issues 7 & 8) in order to record the sale and to protect the future existence of the work; if the gallery does not intend to buy the works but merely wishes to hold them for dealing purposes, then the attempt to use the ABS/ACS will make it clear that it is a 'sale or return' situation where a consignment agreement (sic) should be used.
More frequently, galleries agree to exhibit works for a time and deal with any sales that might arise during the exhibition period on a commission basis; such agreements will be discussed in the next issue.
Some galleries agree to act as representative for the artist in, say, the U.K. or Europe, promising to promote the artist's work there by exhibiting and selling; for these purposes galleries buy some works outright, receive others to deal in, guarantee the artist so many sales and exhibitions per year and often pay the artist a 'salary' which is recouped from sales. Such agreements were discussed in issue 6 ('The Rothko Wrangle') and will be dealt with in detail in future issues.
Printmakers often make arrangements with galleries for the publication, distribution and sale of an edition (also to be dealt with in future issues) which must be distinguished from the three agreements already mentioned and from the transaction many artists frequently find themselves involved in: sale or return.
Consignment is a more accurate term than 'sale or return', because it makes dear to both sides that the artist does not intend to sell the works to the gallery at any stage, but merely intends to leave them for sale by the gallery as artist's agent or consignee on a commission basis. In these circumstances a written agreement should be signed by the artist when sending or delivering works to a gallery whose representative should then sign and return it to the artist. The following suggestion may be particulary useful to printmakers and photographers consigning a number of works to gallery and can be easily amended by both sides as required.
This is an agreement between
________________ Gallery of __________
by which the Gallery confirms receipt on consignment of the following of the Artist's works:
EDITION NO./RETAIL PRICE
and by which we agree:
- Sale. The Gallery shall offer each work for sale at the stated retail price and for this purpose shall use the Artist's Bill/Contract of Sale, copies of which are attached.
- Payment. The Gallery shall send to the Artist the stated retail price of each work less the stated commission, within a reasonable time after sale.
- Return. The Gallery shall return all unsold prints immediately upon the Artist's written request.
- Damages. If a work is lost, damaged or destroyed during the currency of this agreement, the Gallery shall notify the Artist immediately and shall be liable, to pay him/her the stated retail price less the stated commission.
- Title. The Artist shall retain all rights in and title to the works until sale, when title shall pass directly to the purchaser whose name and address the Gallery shall give to the Artist upon written request.
Dated the _________ day of __________ 1977
Signed: _______________________(the Artist) __________________
Gallery Director for and on behalf of ______________________Gallery
The preamble to this Agreement states what the document is, who the parties are and acts as a receipt for delivery of the works which are described in detail, including retail prices and rates of commission. Clause 1 ensures that the Gallery sells only at the agreed retail price, but if the parties wanted more flexibility the preamble and this clause could be amended to 'Minimum Retail Price'; and if the gallery agreed to use the Artist's Bill/Contract of Sale when selling a work, the words in italics should be included and copies of the Bill/Contract sent to the gallery with the Agreement. Clause 5 clarifies the after sale; enquiries should be made about the gallery's usual payment arrangements and, if desired, this clause could specify a time for payment. Clause 3 allows the arrangements for return of unsold works to be flexible; if the gallery is not prepared to despatch them, the artist can collect them in person and the written request would then serve the gallery as a receipt. Clause 4 assumes that the gallery will insure the works at their retail price against their loss, damage or destruction whilst the gallery is responsible for them, which will include their safe return to the artist; in the event of loss, damage or destruction the gallery will be liable to compensate the artist by paying the retail price less commission, and this will avoid the need for difficult and costly assessment of the artist's loss. Clause 5 clarifies the relationship between the parties: the gallery acts as the artist's agent and as such it never becomes owner of the works but, as agent, it has the artist's authority to pass ownership to purchasers; this means that unsold work which is lost or damaged is still owned by the artist (even though entitled to compensation under Clause 4, which acts simply as a reasonable assessment of monetary loss) who may wish to trace and claim lost work or withdraw from the market damaged work, if it cannot be restored; if the ABS/ACS is not to be used, the words in italics should be included to ensure that the gallery discloses the identity of the purchaser, if required.
This Agreement does not deal with arrangements for framing, labelling and protective covering for works, the artist's c.v., work statement and publicity material (if appropriate), because artists usually prepare these for themselves; copyright is simply irrelevant.
Exhibition Agreements will be dealt with in the next issue.
© Henry Lydiate 1977