Commissioning an Artist
Commissioning an artist to create a work is one of the earliest forms of art activity and one of the most obvious legal relationships an artist enters into: a commission agreement is a contract by which the commissioner agrees to pay the artist for his skill and labour (and not for the sale of the artwork, which is why it is not a contract for sale).
For centuries commission agreements have been made orally, and still are (like most arrangements made in the art world); and that is why, for centuries, serious problems have arisen. A classic case, Michaelangelo's wrangle with the Pope, arose mainly due to the absence of a written agreement between them clearly specifying their respective rights and duties and to which both could look for a solution when differences arose between them as the work progressed. Look at these recent cases. First, the American sculptor commissioned by a French city to create a piece to be placed inside a new municipal building during its construction who, after a year of work involving the creation of numerous designs and models, making several transatlantic trips and engaging a French foundry to cast the piece, was told that the work was no longer required. Then, the three English artists commissioned to paint an artwork on a bus who, after completion, were denied payment and their copyright in it and who later found it had been mutilated. Finally, the English sculptor commissioned by a museum to make a portrait which was later destroyed by the carriers in transit, who had to make and deliver another cast at his own expense.
In all three cases there was, at best, an exchange of letters and, at worst, nothing in writing to show what the arrangements were; this means that in each case a court would have had to judge what the arrangement probably was by hearing the artist's and commissioner's evidence as to what they remembered they had agreed. This expensive and needless exercise can and should be avoided by both parties simply writing down the terms of their commission agreement and signing it at the time it is made.
A written commission agreement has obvious advantages for both parties: it can provide them, at the outset, with answers to foreseeable disputes, which will dispense with the need to consult costly lawyers for opinions and advice as to how a court might decide the issue; their respective rights and obligations will be clear; and there will be written proof of the agreement on which both can rely. It is, of course, for artists and commissioners themselves to decide what form their written agreement should take; what follows are suggestions which could be used as they are or be modified to suit the needs of a particular case. There are two main types of commission: one is for artwork to be carried out in/on premises or a conveyance owned by the commissioner (the Artist's Commission Agreement); the other is for an object to be created for the commissioner and sold to him as part of the commission agreement (the Artist's Commission
and Sale Agreement).
Artist's Commission Agreement
This is an agreement between _________of_________(the Artist), and_________of_________(the Commissioner), by which we agree that
The Artist shall create the following proposed work:
materials to be used:
In consideration for the Artist creating the proposed work using his/her best aesthetic skill and judgement, the Commissioner shall pay to the Artist £__________, as follows:
£_________by cash/cheque before s/he starts to execute the work;
£_________by cash/cheque when the artist gives the Commissioner written notice that the work is two-thirds (2/3) complete; and
£_________by cash/cheque when the artist gives the Commissioner written notice that the work is completed.
- The Commissioner shall arrange for the Artist to have access to the place where the proposed work is to be executed for _________days, between the__________day of _________197_, and the_________day of_________197_.
- The Artist shall retain the copyright in the work.
Date the_________day of_________197_.
Signed:_________ (the Artist) and_________ (the Commissioner).
Although this suggested form is called an 'agreement' (to describe what the parties are doing), it is still a legally binding contract: the language is simple, makes the position clear, leaves the artist aesthetically free and secure in the knowledge of a concrete arrangement and when s/he should be paid. Clause 1. allows the parties to describe the proposed work and materials to be used, and reference could be made to any designs, drawings or maquettes already agreed. Clause 2. provides for payment by instalments (three is a sensible, standard practice), the artist deciding when they are due and being left free to create the work according to his/her 'best aesthetic skill and judgement'. (It is assumed that the commissioner is familiar with the artist's work, has agreed the design and will monitor the work in progress; should the commissioner wish to terminate the commission, s/he may do so at the risk of having to pay the artist compensation sic). Clause 3. suggests the number of days required for execution of the work (an over-estimate is wise) and specifies the period when the work will be carried out and access to the work-place will be required. This leaves the artist reasonably flexible and gives the commissioner some idea of the time scale for his own arrangements and for payment. Clause 4. simply clarifies the copyright position: should the commissioner wish to buy the copyright from the artist, the price should be increased accordingly and the clause amended to read 'The copyright in the work is also sold to the Commissioner'.
The Agreement does not make provision for either party's termination of it, mainly because to do so would be to undermine the serious commitment of both parties and also because on this point the law is clear: the commissioner can refuse the artist entry to his premises to execute the work, which will entitle the artist to recover damages (monetary compensation) for any loss and inconvenience the refusal may cause; the artist can refuse to execute the work, which will entitle the commissioner to employ another to do so and to recover from the artist damages for any loss and inconvenience the refusal may cause. Should either party die, the agreement will be at an end and the artist will only be entitled to payment from the commissioner's estate for work already done at the date of death. Clauses could be included to protect the finished work against mutilation and destruction, but since many artists are unsure about the appropriateness of such terms, they have been left out in the above suggestion.
Artist's Commission and Sale Agreement
The preamble and the first two clauses are the same as in Artist's Commission Agreement
3. The artist shall complete and deliver the work to the Commissioner at_____________________________________ ON OR ABOUT THE _________________________day of_________, 197_, and on delivery the parties shall sign the Artist's Bill/Contract of Sale (a copy of which is attached to this Agreement).
4. The artist shall retain all rights in and title to the work until its completion and delivery, receipt of final payment and signature of the Artist's Bill/Contract of Sale.
5. The Commissioner may terminate this Agreement by giving written notice to the Artist who shall then be entitled to retain and receive payment for work done in pursuance of this Agreement up to the date of receipt of such notice, and to retain all rights and title to the work.
Dated the _________day of_________197_.
This Agreement deals with the creation and sale of a work and strives to strike a balance between the artist's right to aesthetic freedom, the commissioner's right to terminate if s/he does not like the work, and the need for a concrete agreement both can rely on. Clauses 1. and 2. are the same as in the first agreement. Clause 3. requires the artist to complete and deliver the work at a certain place by an estimated date (it does not matter if, there is a reasonable delay), to give both sides a general idea of completion and payment date; it also requires the parties to sign the Artist's Bill/Contract of Sale (suggested in Art Monthly, issues 7 & 8), which is incorporated to ensure that the work is
fully protected when it leaves the artist's possession. (Where the ABS/ACS says 'Terms of Payment', insert:
'In accordance with the Artist's Commission/Commission and Sale Agreement, dated the____________day of ____________ 197_.')
The ABS/ACS should be shown to the commissioner from the outset, so that s/he is aware of its contents and nature, being the document which will ultimately give him legal ownership of the work.
Clause 5 allows for termination of the Agreement by the commissioner giving the artist written notice, thereby becoming liable to pay the artist that proportion of the commission fee which corresponds with the proportion of work executed by the artist at the date of termination. This means the artist will be paid for his time and effort and be allowed to retain the work (which may then be finished, exhibited and sold elsewhere, if desired). A commissioner's termination clause is appropriate in a commission and sale agreement because the commissioner needs to be reassured if that if s/he considers the work unsuitable, it can be rejected – but only on payment to the artist for work done: the later the termination, the more expensive it will be. Further, without such a clause the artist would have to prove to the commissioner (and, perhaps, to a court) what his/her actual loss has been as a result of the termination – not an easy task. On balance, it would appear to be equitable to allow the commissioner to terminate and pay the artist proportion of the fee, and let the artist keep the work.
The Agreement does not appear to deal with the question of loss/damage to the work before acceptance by the commissioner. The answer is built into the Agreement: the artist retains all rights and title to the work until the final payment is made and the ABS/ACS is signed, that will be on delivery of the finished work and so the artist will bear all risks of loss and damage until then, and should take out appropriate insurance cover.
Printmakers experience particular problems when selling work because they usually have to leave their prints with shops and galleries on a 'sale or return' basis; the contracts discussed so far in relation to selling work do not cover the 'sale or return' or 'consignment' situation which will be dealt with in the next issue.
© Henry Lydiate 1977