Beware of Artists Bearing Gifts

It is still common and customary practice for artists to donate works to friends, family, museums and galleries. And it is equally common that such gifts are executed by informal methods, which can and often do cause social and legal problems later, sometimes even long after the artist has died. Apart from the emotional and personal upset experienced by donors and donees when the execution of a valid gift is queried or questioned, the untangling of the legal rights and wrongs of the giving can be very costly; the more so if the donor has been dead for some time, and the work in question has become a valuable piece in monetary or critical terms. All of this can be minimised, if not avoided, if donors and donees follow simple good practices.

In UK law, a work of art is treated as being personal moveable property: a chattel, in legal jargon (from the Old Northern French ‘catel’, which also became cattle in English). To be a valid gift, two things have to be shown: first that there was an intention by the owner of the gift to give it to the donee and secondly that arrangements were made for the property to be transferred to the donee’s possession. Documentary or other proof of the gift is not strictly required: if a purported gift is queried, then the law will look for any available evidence – of intent and of arrangements for transfer of possession – to assist the court to decide whether the transaction was valid in law. That is the basic position which sounds, and is, very straightforward. However, life is not as simple as that. Most gifts, including gifts of artworks, are made without documentary or other evidence required by law. Very often, in the case of, say, a gift by an artist to a friend, the transaction takes place spontaneously in the studio where the donee is present for social or family purposes; and with no witnesses present. The artist may lend the work to someone on a friendship basis, for exhibition purposes, or may have placed it in the hands of a photographer, printer or restorer, subsequently deciding that the person in possession of the work can keep it. Whatever the circumstances, all such gifts are made by way of transfer of physical possession of the work (for reasons other than the making of a gift), followed by a change of intention by the artist owner, to give the work to the person to whom it was lent. Without documentary or other evidence proving the artists change of intentions, it can become extremely difficult to resolve any subsequent disputes as to true ownership.

Artists can be very generous donors of their works, especially when they and their works are unknown in critical or marketplace terms. And that is the point where most future problems and disputes have their origin. After such informal gifts of such works, it frequently occurs that many years later, when the parties involved have long forgotten who said and did what to whom, the gifted work emerges into the critical art world or marketplace as an important and valuable piece or commodity. Then lawyers are consulted, at what can be great expense, to unravel and resolve what is usually a simple series of factual issues: did the artist own the work? Did the artist intend to give the work to the person who now has possession of it? Did the artist agree to arrange transfer of the work to the person now in possession of it? And/or is there is some evidential audit trail proving transfer of the work from the original donee’s possession to the person who now claims ownership? The answers to such questions can be and usually are difficult and expensive to achieve in the absence of documentary or other evidence. What can be done to avoid such wrangles?

Documentation is the real answer to every such problem. Whenever an artist wishes to give a work to some body or institution, he or she should manufacture some paper work – a letter, note, a fax, even an e-mail message – to confirm his or her intention to donate their work. That documentation should at least describe the work, its title, dimensions, materials and techniques used; the fact the artist was author and owner; the name and address of the donee; state the artist’s wish to transfer the ownership and the work and set out what arrangements have been or are being made for physical transfer and possession to the donee.

That is the least that should be done. Far better, however, to go further and address such issues as: the ownership of the copyright in the work; the assertion of the artist’s moral rights not to have the work distorted in any way, even by way of framing (if unframed) or re-framing (if framed); whether the new owner has permission to reproduce and authorise reproduction of the work (with or without the artist’s express written permission); whether the new owner is allowed by the artist to exhibit the work, and in what circumstances; whether the artist is giving the work on the strict condition that it is not sold, lent or put up for auction; what the new owner should do to take care of the work; and what the new owner should do if the work gets damaged or stolen (for example, to inform the artist immediately). All of the above matters, and any others the artist may wish to insert, in law amount to terms and conditions of the gift. In other words, the artist makes it clear so that the gift is a conditional one so that, if any of the conditions are broken or unfulfilled, the artist can revoke the gift and regain ownership and possession.

There are further advantages of artists manufacturing such documentation. It undoubtedly assists contemporary collectors, curators and exhibition organisers to deal with problems of repair, restoration and conservation of such works. And, looking much further forward, it will also help future generations to have contemporary documentation – under ‘the hand of the artist’ – not only dealing with conservation issues, but also dealing with provenance. Whatever method of documentation is used, the artist donor should keep a copy for their archives, together with a transparency or other visual record of the work.

© Henry Lydiate 1996

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.