Paper Promises, part 2

Part I last month began to deal with exhibition and selling work, one-off and generally, responding to five questions posed by a newly-established gallery administrator. Part II concludes by giving check lists of points for debate, negotiation and eventual written agreement by the parties to five common contractual situations.

Artist’s Bill of Sale

1. Date.
2. Place of sale.
3. Title of work.
4. Description of work.
5. Buyer’s name, address and telephone.
6. Price.
7. Terms of payment.
8. Copyright:
remains with the Artist.
9a. Signatures: Artist (at least), Buyer (if willing; if not. Artist signs alone and gives the Bill to the Buyer anyway, keeping a file copy)
9b. Letters: instead of using the Bill, the artist sends a letter confirming all the items listed, keeping a file copy.

Artist’s Contract of Sale

1-7. as for Artist’s Bill of Sale, above.
8. Originality: artist’s promise that work is original and that a replica will not be produced.
9. Edition: if work is from a limited edition, artist’s promise not to enlarge the edition.
10. Copyright: remains with the artist (but see below: Artist’s Copyright Licence – if the buyer also wants to buy reproduction rights).
11. Care of work: see item 8 of Rental Agreement (see part one) – the same or similar arrangements could be made.
12. Restoration: arrangements for the artist’s supervising or conducting restoration or conservation.
13. Artist’s Exhibition: artist’s right to borrow work back for exhibiting, for a defined period each year if ‘nail to nail’ insurance cover achieved while work in artist’s possession or control.
14. Placement of work: buyer’s promise to notify artist of work’s placement elsewhere.
15. Addresses: mutual exchange of any changes.
16a. Signatures: see item 9a of Artist’s Bill of Sale. (above)
16b. Letters: see item 9b of Artist’s Bill of Sale. (above)

Exhibition Contract

1. Parties: artist; gallery.
2. Exhibition: artist’s promise to provide works; gallery promises to show them.
3. Venue: dates; places; spaces.
4. Works: which – existing and/or projected.
5. Delivery: by whom, when, where; at whose expense.
6. Hanging: by whom and when.
7. Collection: by whom, when, where; at whose expense.
8. Damage/Destruction/Theft: who pays, how much and when.
9. Insurance: who arranges cover, for what amount; at whose expense.
10. Opening hours: days and times.
11. Invigilation: by whom, when and how; at whose expense.
12. Publicity: what will be done, by whom, when; at whose expense.
13. Private view: what will be done, by whom, when; at whose expense.
14. Agency: whether the gallery is given exclusive selling (and/or commissioning) rights during and/or after the show; whether the Artist’s Contract of Sale will be used and, if so, discussion of its details and form – including the gallery’s commission (percentage of agreed selling price).
15a. Signatures: see item 9a Artist’s Bill of Sale (above).
15b. Letters: see item 9b Artist’s Bill of Sale (above).

Artist’s Agency/Gallery Contract

Quite distinct from a one-off exhibition contract, this deal envisages on-going representation by an agent (with or without gallery premises) or a gallery, for all or most income-generating purposes; usually where the artist receives a cash advance or annual/monthly stipend, to be set-off against anticipated future income.
1. Parties: artist; agent/gallery.
2. Representation: agent/gallery’s engagement exclusively or in conjunction with other agents, to promote and represent the artist by one, or any combination of:

  • selling work
  • arranging commissions
  • arranging exhibitions
  • arranging lectures, talks, media appearances.

3. Work: which ones – all visual artwork; just paintings; only works on paper; sculpture alone; and so on; and whether only existing work, or future work also.
4. Copyright: does the artist give rights to act as agent for authorising reproduction of work -if so, on what terms, and the method and manner of execution; Artist’s Copyright Licence, below.
5. Geography: territorial limit of the representation – UK only; EEC; USA but not Canada; Europe, but not USSR?
6. Term: length of the representation – fixed term; periodically renewable; indefinite subject to written notice by either side?
7. Sales: method and manner of execution (Artist’s Contract of Sale to be used?); pricing; timing of release into market-place; geography of release; agent/gallery’s commission; artist’s rights in decision-making process.
8. Commissions: method and manner of execution (written agreements and their details?); artist’s right to be consulted, or to veto.
9. Exhibitions: method and manner of execution – both in-house and elsewhere (written agreements and their details?); timing and geography; consultation with artist, or right to veto.
10. Consigned works: details of finished work deposited (consigned to) the agent/ gallery for sale (or nfs), and arrangements for reception of projected works – how many required per year, how frequently, style, content and media to be used.
11. Bought-in works: which works will be bought in by the agent/gallery at the outset, and periodically thereafter; prices, method and manner of execution (Artist’s Contract of Sale – with conditions about re-sale).
12. Agent/Gallery Fees: whether flat fee per annum/fixed term; and/or percentage of all income generated during the period of the agreement – or only income generated by the agent/gallery; whether or not still payable if no income arises.
13. Artist’s Payments: when and how; statements of account to be regularly given; names and details of all transactions – purchasers/commissioners and so on; whether cash advances/stipends are to be set-off against future income, if so how and when.
14. Restraint of Trade: whether and if so to what extent the parties wish to restrict their respective use, after the deal has ended, of information and trade achieved whilst the deal was operating; e.g. the gallery may wish to continue to act as agent, perhaps not exclusively, for a defined ‘mop-up’ period after the deal has ended; the artist may want to be able to sell works to collectors achieved by the gallery, for a defined period after the deal has ended, and the gallery might wish to agree – but only if all such sales are put through the gallery for a commission fee.
15. Arbitration: agreement to refer future disputes to an independent arbiter, mutually agreed at the outset.
16. Names and Addresses: mutual exchange of any changes.
17. Assignment: whether or not the agent/ gallery can transfer the benefits (and obligations) of the contract to any other agent/gallery, without consulting or obtaining permission from the artist.
18. Proper Law: where the parties are respectively resident/trading/practising in different countries, they should agree which law is to be used to decide any disputes which may arise in future from performance or interpretation of their paper promises.
19a. Signatures: see item 9a Artist’s Bill of Sale, (above).
19b. Letters: see item 9b Artist’s Bill of Sale, (above).

Artist’s Copyright Licence

Time and space has not permitted a graphic examination of copyright here; suffice it to state one golden rule: the sale or gift of an artwork does not also sell or give the copyright in that artwork; copyright can only be sold or given away by a written document signed and dated by the artist/copyright owner. This being so, it is important to know that a permission to reproduce artwork need not be in writing. However, not to do so in writing is dangerous for both permitter and reproducer, neither of whom will have proof that permission was in fact given. Accordingly, permissions (licences) are nearly always, and ideally should be, given in writing: an Artist’s Copyright Licence. If a sale, commission, agency/gallery dealership does involve the artist’s giving permission authorising the buyer’s, commissioner’s, exhibitor’s or dealer’s reproducing work, great care should be taken by both sides to put the permission into writing, detailing the specific limited purposes of the authorisation. The following check list should be useful, and may also be appropriate where the artist copyright/owner is simply approached to authorise reproduction of work already in someone else’s possession or ownership, or even if the artist still owns/possesses the work intended to be reproduced.

1. Date.
2. Licensor: name and address of artist/copyright owner.
3. Licensee: name and address of person wishing to reproduce.
4. Title of work.
5. Description of work: dimensions, medium.
6. Length of licence: fixed term; periodic and renewable; indefinite subject to written notice from artist/copyright owner.
7. Geography of licence: territorial extent of licence to reproduce; e.g. England, UK, EEC, USA and so on.
8. Type of licence: reproduction limited to certain media; to specific numbers of copies; or to uses of image.
9. Exclusivity of licence: whether the licence permits reproduction by the licensee exclusively or non-exclusively.
10. Return of materials: arrangements for return to artist of original artwork and any negatives, bromides, transparencies, matrixes, moulds, plates and so on, after the reproduction.
11. Artist’s acknowledgement: whether licensee is required to publish an acknowledgement of the artist’s authorship, copyright ownership, the year of authorship, and address for copyright enquiries; e.g. “© Henry Lydiate 1986; all enquiries c/o Art Monthly, London WC2”.
12. Licence fee: whether a one-off, flat fee; and/or a percentage/royalty of retail/wholesale price of reproductions or of numbers made, and so on; or whether licence is given for free.
13. Retention of copyright: statement that the licence/permission is not transferable by the licensee to any other person; and that the artist/copyright owner retains copyright, i.e. retains exclusive rights to authorise reproductions of the work.
l4a. Signatures: see item 9a Artist’s Bill of Sale, (above).
14b. Letter(s): see item 9b Artist’s Bill of Sale, (above).

As mentioned earlier, artists rarely, if ever, transfer to another their exclusive copyright authority, which is their right to give permissions for reproductions; most prefer to keep their copyright authority and use it to give permissions/licences to reproduce. However, on those rare occasions when artists do transfer their copyright, they usually do so for a large fee because they are thereby denying to themselves a valuable income – generating asset i.e. fees or royalties for giving permissions/licences, as described above.

And since this is such a serious step, the law requires such transfers of copyright to be performed in writing, carefully worded, thus ensuring that no misunderstanding can occur. Artist/copyright owners wishing to do so are well advised to seek advice and help from a solicitor experienced in such matters; initial help is available from:

The Design and Artists Copyright Society (DACS)
Parchment House, 13 Northburgh Street, London EC1V 0JP
Tel: 020 7336 8811
Fax: 020 7336 8822
Email: info@dacs.org.uk
www.dacs.org.uk

Commission contracts

Would-be commissioners wanting designs or completed works to be made and/or installed, and/or reproduction/merchandising rights, are likewise well advised to conduct negotiations with artists using a check list of essential items for discussion and agreement; and to record such details in writing. Time and space prevent further consideration here, but these matters were fully dealt with, including check lists, in Art Within Reach published by Thames and Hudson in 1984.

© Henry Lydiate 1986

 

 

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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.