Damage to Work

Damage to work can be a real problem, particularly when it’s discovered during a show. Although artists and galleries tend to rely on insurance companies to pay for restoration costs, there have been an increasing number of cases recently where insurance claims have not been met and the gallery has been reluctant or simply unable to compensate the artist fully, if at all.

This is a disturbing problem and merits closer attention.

The Artist’s Tale
Last January, the Gallery Director agreed to show a dozen of my paintings during the month of July with two other artists’ work. She wrote me a letter confirming our agreement and saying that I had to deliver the work and help to hang it; they would take 30% commission on sales and I had to supply a price list; unsold work was to be collected by mid-August.

My mate delivered and unpacked the work on July 1, and later that day I hung it with the Gallery Director and gave her the price list (ten at £100, two at £250); then there was the opening, but I didn’t look at the piece too closely that night – for obvious reasons. Anyway, on July 20, I called in with a potential buyer and he pointed out that there was a small hole through the canvas at about shoulder height, surrounded by a dent about six inches in diameter. It was quite a mess, but it being a fairly dark section of the painting and the light being none too good in the gallery, you could easily miss it from a distance.

I was really upset and showed the damage to the Gallery Director who promised to look into the matter, and gave me the name of a firm of restorers. I rang them up and they said it would cost about £200 to £300 – even though the selling price was £250. The next day I saw the Director who had contacted the Gallery’s insurers; they had said the Gallery wasn’t responsible and wouldn’t pay.

So, we argued. I said the damage was done during the show and was down to the Gallery – someone had obviously put a shoulder through it; she said it had clearly happened in transit and that it was down to me, so I should claim off my insurance. Unfortunately, I’m not insured.

She also said that even if the Gallery were responsible, the insurers would only pay £100 at most, because that appeared to be the ‘market value’ of my work at the moment. It’s true I’ve never sold for more than that, and the two pieces which were sold in this show were sold for £100. But surely, if I’m selling a piece for £250, and restoration costs between £200 and £300, I must be entitled to at least £250 from the insurers; isn’t that what insurance is all about?

The Gallery’s Tale
The Artist and I hung the work, and I must say I didn’t notice any damage – but it could have been there. Even when it was pointed out to me, I couldn’t see it at first. It looks like something has fallen against it; my guess is another painting whilst in transit. No one can be really sure when it happened, and even if it did happen here, it was probably an accident. Our insurers say they will only pay if it was our fault. I can’t prove that, so I don’t really think I can claim.

Furthermore, the insurers say the market value could only be £100, since we have sold two other similar pieces from the same body of work for £100 each and the artist has never sold for more than £100 during his career – which has not been very long. It probably is the best piece, but it is the value in the art market place that counts for insurance purposes, I have to agree.

Our Gallery has cover for up to £1,000 per piece, but if we’re not liable for the damage and the insurers won’t pay, there’s very little I can do. We’re only a small Gallery on a shoestring budget. I do sympathise with the artist and I’ve tried to help – I gave him the name of a firm of restorers and advised him how to claim off his own insurance policy. I don’t see what else we can do.

The Insurer’s Tale
We do give general cover to the Gallery, and up to £1,000 per piece if lost, stolen, destroyed or damaged. Although we don’t specialise in art insurance, we do offer cover to galleries for exhibitions and to artists for work in their studios and in transit. However, liability for loss is our primary consideration.

The Gallery Director telephoned us about the damage, but she had no clear idea of how and when it happened or of who is legally responsible. We spoke about it for some time and it appears to us that the work was damaged either in transit or at the artist’s studio, but was only noticed during the show. The artist should already have cover for that eventuality and I advised our client, the Gallery, to tell the artist to make a claim accordingly.

If the Gallery were able to satisfy us that they were responsible, I feel that £250 is excessive in the circumstances. The market value of the work is our main concern; if the artist has no market for his or her work, there is no economic value and therefore no loss – insured or otherwise. In this case, the artist has never sold for more than £100 and we see no reason for differentiating between the ten works at £100 and the other two at £250 in the same show. Restoration would cost in excess of £100, so we would regard the work as a write-off. Were the Gallery liable, which is not clear, we would probably offer to settle for £70 (£100 market value, less £30 commission representing the artist’s real loss and, in my view, a fair settlement).

A Lawyer’s Solution
It is always difficult to resolve such cases when there is no clear evidence of how and when the damage occurred, or on its supposed ‘market value’.

Artist and Gallery should work together on this one, pooling their first-hand knowledge of delivery, unpacking and hanging, then consulting private view guests, gallery staff and visitors to the show. Someone is bound to remember when the dent appeared, perhaps saw it happen or maybe even did it themselves. In the absence of any evidence to the contrary, it will be reasonable to assume that the work was intact until discovered by the potential buyer of July 20. That can only mean the damage was done in the Gallery; and so (in the absence of any term in an exhibition agreement saying otherwise or of the Gallery being able to show it was not at fault) the Gallery must be legally responsible to pay for the artist’s loss.

This is a more difficult issue, and the burden of proving it is on the artist. A letter from the restorers will be required, plus one or two more from other firms, if possible, to confirm restoration costs. These documents together with a copy of the price list (and the exhibition agreement, if it deals with damages) should be sent by the Gallery, the artist, or both, to the insurers. The claim should be for the agreed selling price of £250.

If the insurers did not settle the claim for £250, the Gallery would have to consider suing them under the insurance policy or paying the artist themselves, when the artist sued the Gallery for the full £250.

Of course, this would be distasteful and expensive. It would, however, be almost entirely avoidable if exhibition agreements made clear provision as to proof of delivery and safe receipt of work, and as to liability for damages and insurance. Artists and galleries could help themselves enormously in this respect by agreeing on realistic selling prices and insuring the works for those prices. (So often works are agreed to be saleable at £X, insured for £X + 20%, and listed for sale at £X + 50%; it is hardly surprising that insurers behave in a confused and suspicious manner).

The difficulty remaining would be to find a company prepared to specialise in the insurance of works of living artists at stages in their careers when their market place is unproven or non-existent. Such a company would have to understand and respect claims resulting from damage quantifiable in terms of realistic, professional loss and not necessarily in terms of market value. Unfortunately, searching for such a firm is like looking for a needle that’s lost in the sand.

© Henry Lydiate 1977

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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.