Artists – grateful for the offer of a ‘gallery deal’ – are understandably reluctant to request the use of a written agreement during negotiations, since this might jeopardise their chances.
In this column during the past months, the four basic business transactions most artists undertake have been discussed: sales, commissions, exhibitions, and consignments to agents for sale. A fifth deal is often made by some artists with galleries who agree to act as manager/agent for the purpose of promoting the artist by publicising, exhibiting, selling and generally ‘dealing’ in the artist’s work. It is often said that the gallery has ‘taken on’ the artist who has, therefore, joined the ‘stable’ of other artists promoted by that gallery.
Artists and galleries often fail to realise the extent of their mutual responsibilities and rights, when they join forces in this way. Very few galleries use written forms of agreement, preferring to rely on memory, and mutual trust. Artists – grateful for the offer of a ‘gallery deal’ – are understandably reluctant to request the use of a written agreement during negotiations, since this might jeopardise their chances. Although the parties are entering into a very close relationship, the administrative details of that partnership are necessarily numerous and varied so that it will be impossible for either party accurately to recall what they said to each other, let alone what they agreed. This can lead to problems, both legal and administrative, in the future which can undermine – if not destroy – an otherwise successful partnership.
The matters discussed below are considered essential points for discussion and agreement: many seem to be entirely obvious; all have caused serious economic and aesthetic problems in the past which could have been so easily avoided. It is for artists and galleries themselves to decide whether these points should be contained in a written Gallery Agreement.
Preamble: names and addresses, description of their business (e.g. ‘artist’; limited company/partnership).
Agency: that the gallery will act as agent for the artist to promote, exhibit and sell work (as distinct from acting as consignee, simply to sell work/s left at the gallery: see AM Nov. ’77); that the agency will cover a specified geographical area. (Say the gallery is in New York, the artist in London, who is to know whether the agency extends to USA, UK, Canada, Europe, the world? Is the artist free to deal with another gallery (in London or Tokyo)?
Consignment: which works are within the terms of the agreement and are, therefore, consigned to the gallery for exhibition and sale. (There are basically two kinds of work: specified existing works, which should be listed; all or a selection of future work.);
- provision for adding a signed list of new works to those already consigned;
- that all consigned works are held by the gallery in trust for the artist, and are not part of the gallery’s capital assets or stock-in-trade for tax or bankruptcy purposes.
Delivery: who is responsible and how costs are to be shared.
Title: when legal ownership of the works is to pass to the buyer. (This often causes problems. If artist and gallery agree that legal ownership can only pass to the buyer when the artist receives payment, there is much greater protection in law for the gallery, the artist and the work. If no such agreement is made, legal ownership usually passes in law when the buyer agrees to buy the work – so it belongs to the buyer, in law, even though it still hangs in the gallery awaiting payment).
Receipt: arrangements for written acknowledgement by the gallery that consigned works have been received.
Promotion: what steps the gallery promises to take on behalf of the artist to promote the work.
Sales: which works are for sale; retail price; gallery’s commission on sales and on studio sales made by the artist; discount sales and whether discount is to be deducted from the gallery’s commission; arrangements for approval sales; arrangements for paying the artist in respect of outright, deferred and instalment sales.
Loans: arrangements for consigned work to be lent permanently or temporarily; for the artist’s prior written consent; for the use of loan scheme contracts; for payment to the artist; % of rental fees for the gallery.
Advances: arrangements for payment to the artist of money in advance of sales/ rental fees; whether to be re-paid and when.
Exhibitions: how many will be arranged by the gallery for the artist each year, what kind (solo/group/mixed) and for how long; whether the gallery may arrange to exhibit works other than at gallery premises; whether the artist may exhibit and/or sell work other than consigned work, in another gallery. (Many artists promise to show their work in other galleries, often work in a different medium to that consigned to the dealer. Serious problems can and do arise, when the dealer discovers the arrangement and simply objects, or asks for his commission on sales. Many non-commercial – ‘public’ – galleries are unaware that artists they wish to show have a ‘gallery deal’, and can unwittingly make embarrassing ‘double-deals’, often with well-established artists.); what the financial arrangements are concerning exhibitions. (Many artists have been surprised to find exhibition costs set off against sales.)
Damages: responsibility for loss/damage to work whilst at the gallery premises in transit to and from whilst on loan;
insurance – by the gallery for the artist’s benefit.
Statements of Account
e.g., a quarterly statement by the gallery to the artist dealing with-
- works sold/loaned
- date/price/terms of sale/rental
- gallery’s commission
- names and addresses of purchasers/hirers
- amount due to artist
- location of all unsold work, if not at the gallery;
- mutual rights of inspection of documents relating to sales/loans of work.
Written Contracts of Sale/Exhibition/ Commission:
- whether they are to be used;
- whether the gallery will use its own, or the artist’s
Copyright: clarification that the copyright remains with the artist and is not for sale by the gallery with the work without prior written consent, and for an additional fee to be agreed. (Some galleries believe they can sell all rights to consigned works, including copyright; this is not so, unless agreed in writing by the artist); arrangements for reproduction by the gallery for catalogues and publicity purposes – always to include © artist’s name and year of publication, e.g. © A. N. Other 1978. (Some galleries like to issue post-cards/posters of work: in the absence of a clause covering this, a separate written publishing agreement must be made, otherwise the gallery will have no rights to do this.)
Duration of Agreement: when the parties may end the agreement. (Usually by either party giving the other 30 days written notice, or 90 days after a solo exhibition at the gallery premises.).
Return of Work: who shall have the responsibility and bear the cost of transport – or storage charges if the work cannot be returned.
Arbitration: whether the parties should, use an independent arbitrator in the event of a dispute over the terms of the agreement. (To avoid the expense and time involved by going through the courts.)
Governing Law: which law is to govern the settlement of disputes over the agreement. (Art-dealing is international and transactions can be made anywhere in the world. This may mean that another, foreign law would have to be applied to decide the dispute. If English law is not specified as being applicable, parties may find themselves having to pay expensive legal fees for foreign law experts.)
The use of written Gallery Agreements makes good business sense, particularly for a gallery with a large turnover of sales and shows. One such leading West End London gallery proprietor has expressed the view thhat without clear written evidence of agreements with artists and buyers, and regular written statements of account to artists, the business efficiency of the gallery would be severely impeded, and sales, shows and, consequently, profits and livelihood would be lost or wasted: and that is not in the best interest of the gallery or the artist.
© Henry Lydiate 1978