Doing a Deal: Part 2

Last month’s column explored the basics of UK contract law and good practices for artists and galleries conducting negotiations with a view to arriving at a gallery deal. This month we look in more detail at various types of deal and their essential ingredients.

Nature of the deal

Artists need to be clear about what they expect from ‘galleries’, for not all operate in the same way.

Most publicly funded galleries are chiefly interested in showing work and, if they are also prepared to sell work, it will usually be on the basis that a price list will be agreed with the artist in the hope that a passing interest in buying may be shown by visitors to the exhibition. In practice, such deals are really only ‘one-off exhibitions’ and not ‘gallery deals’ in the strict commercial sense; such galleries will normally take a lower percentage in commission than would professional galleiy dealers – ranging between around 25%-40% depending on the amount of effort put into selling and the gallery’s reputation in the primary market place as a good selling venue.

In the private sector, there still exists a number of ‘dealers’ who operate without their own gallery premises, acting in the main as promoters of artists’ work and who find venues they consider suitable for the holding of one-off shows. Artists should exercise great care in entering into commercial dealings with such people. Experience has shown that such dealers often have little knowledge of the primary market place, relying on their personal tastes for certain types of work and hoping to attract commercially undeveloped artists vulnerable to the attractions of someone flattering them with (usually) faint praise and offering to ‘develop their careers’. The usual motivations for such dealers’ offers are not simply to make a small profit on primary sales’ commission (at around 50%), but to make a much larger one in the secondary market place by buying in the best (in their view) work from the artist at a ‘discount’ (a nominally low sales figure) in order to re-sell such work at the highest price they think they can achieve. And therein lies the danger for vulnerable unknowns: not only might they be sold short (through the primary sale to their dealer), but may also be more seriously damaged in the market place through over-inflated secondary sales prices which are unlikely to be sustainable in the longer term. Artists should be wary of engaging with such ‘dealers’ who generally do not operate from permanent, well-established and respectable gallery premises.

Gallery deals most likely to prow to be in the best long-term interests of both artists and galleries are those through which no quick fix is offered, that have their own well-established premises and a reputation for integrity and industry in their dealings with artists, collectors, other galleries, auction houses and the public art sector. Such galleries are in the minority. In the UK, they are mainly concentrated in the capital, and in central London in particular. The Society of London Art Dealers is the professional trade body to which most such galleries belong: it maintains a comprehensive list of members, most of whom are household names in the international art market place. Such galleries are much sought after by artists: they are relatively small in number and can only afford to engage permanently a handful of artists whose careers they have the resources to develop; by offering them financial support (annual stipends or salaries recoupable from sales commission at least 50%), expert advice on primary sales prices and types of work likely to be attractive to known collectors, a pool of possible reliable collectors from around the world, and sometimes materials and fabrication costs.

A tried and tested route to commercial and (often also) critical success for the unknown artist in the UK is likely to lead from participation in group showings in ‘one-off exhibitions’ at publicly funded institutions producing some sales and critical acclaim, that in turn might lead to a solo showing at such an institution, hopefully producing significant sales including collectors linked with established gallery dealers, leading finally to such dealers becoming interested in taking on’ such artists through a ‘full-blown’ gallery deal.

A tried and tested route to commercial and critical oblivion in the UK is likely to result from little or no participation in group or solo showings at a publicly funded institution and engaging with a ‘dealer’ operating without their own well-established gallery premises. That said, however, there have been in the UK some notable, but rare, exceptions where such ‘dealers’ have been able to develop carefully artists’ primary and secondary sales’ markets, and achieve for them critical acclaim.

Essential ingredients

‘One-off’ exhibitions require the artist and gallery to negotiate and agree, preferably in writing, the following key matters:

  • parties’ names and contact data.
  • artist’s promise to provide works for showing (and sale); gallery’s promise to show (and sell) them
  • venue: dates, places and spaces
  • works: which – existing or projected
  • elivery: by whom, when, where and at whose expense
  • hanging: by whom and when
  • collection: by whom, when, where and at whose expense
  • damage/destruction/theft: who pays, how much and when
  • insurance: who arranges cover, for what amount and at whose expense
  • gallery opening hours: days and times
  • invigilation: by whom, when and how and at whose expense
  • publicity; what will be done, by whom, when and at whose expense
  • private view: what will be done, by whom, when and at whose expense
  • agency: whether the gallery is to be given exclusive selling rights before/during/after the exhibition; selling prices, discounts (if any), commission to the gallery and, most importantly, arrangements for written documentation of all sales including: buyers’ contact data, price, method of payment, whether VAT is/is not payable, and the gallery’s commission.

Such essential ingredients would be equally relevant for group as well as solo showings and, for touring shows, the parties might have to cover all such matters for each venue on the tour, where facilities and services may differ.

The third part of this piece will consider the essential ingredients of deals with ‘gallery-less’ agents and ‘full-blown’ gallery dealerships.

© Henry Lydiate 1998

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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.