Private Commissions and the Law, part 1

The thirteenth year of these columns starts with a re-examination of one of the first and most fundamental areas of art practice, private commissions, because it has posed perennial problems, for artists and commissioners alike, which refuse to lie down.

This time, drawing upon the experiences of commissions to which artlaw colleagues and I have been privy, what have to us become classic myths and misunderstandings will be explored and exploded, and suggestions will be made for their future avoidance.

his month, we look at ‘Amateur Attitudes’ in contrast to ‘Professional Practices’; next month Part 2 will present ‘Professional Checklists’.

Amateur Attitudes

Amateurism abounds. Most private commissioners are non-professionals in the art market-place, making virginal single excursions into commissioning without knowledge or understanding of art business practices; they rely on the professionalism of artists. And there the troubles start. Not because the vast majority of artists are amateurs (in the sense that they do not make work full-time or their livings solely from art practice), but because they exhibit amateurism in their dealings with commissioners. Professionalism is still a dirty word amongst artists, most of whom falsely perceive, assume, hope, even pray, that potential commissioners can be relied upon to have sufficient general business nous, or knowledge of art practice in particular, to remove the need for serious discussion of anything other than the substance and form of the image, perhaps the fee – and then only as and when the commissioner raises the subject. Sadly, the ‘How lucky I am to be given this chance so I mustn’t rock the boat by raising messy business matters’ attitude still prevails. In general, Commissioners can readily be forgiven; artists, be they hobbyists or professionals, full- or part-time, cannot.

Professional Practices

Professionals do it this way: hesitate; negotiate; notate; and indelibly communicate (with duplicate).

Apart from a handful of specialised transactions, UK law does not require agreements between consenting adults to be made by any particular method or form in order to be valid and binding. So long as the two (or more) parties to a deal express their intention to be bound to perform the mutual promises they have exchanged, the law will normally back the deal and, if necessary, the courts will order any defaulting party to fulfil their promises or pay compensation in default. Even if it’s merely verbal, with no witnesses present, it’s good enough. ‘I’ll give you £50 to paint my portrait’; ‘O.K.’ – those words will do. Despite what has just been written and read, there will be some who say it’s wrong, it’s not really like that, it didn’t work for them, a contract has to be written down/drafted by a qualified lawyer/engrossed on parchment/tied up with green and pink ribbons/signed sealed and delivered.

This note’s for you: you’re wrong.

What is missing are details of the terms and conditions of their contract, which the artist and commissioner should have discussed, negotiated and agreed – before the final ‘O.K.’. Things like: sitting arrangements, materials, dimensions, framing, changes, rejection, completion date, ownership, future placement or exposition, delivery, resale, reproduction, deterioration, conservation and restoration, method of payment, deposit, and so on. UK law leaves the parties free to agree such matters between themselves; even if they fail to do so, the contract will still be valid, and only if an aggrieved contracting party seeks redress from the courts will the law intervene. In which case, if there is no clear evidence of the terms and conditions agreed by the parties, the court will consider what evidence there is, hear arguments from lawyers on both sides, then construct a package which the judge thinks is reasonable in all the circumstances of the case. For these reasons, professionals hesitate in order to negotiate.

The world’s the parties’ oyster (some liquid refreshment usually helps). What really oils the wheels is if the artist has a checklist of items for discussion, variable according to the circumstances, some of which were touched on above (and will be explored in detail next month). Anything considered but not agreed will still benefit both parties, each of whom can (depending on its importance to them) call the whole thing off, modify their position on that item, strengthen their requirements in other areas to compensate, or simply have another try to reach consensus. Whatever the outcome, both artist and commissioner will have avoided future potential disputes which can cause distress, inconvenience, and expense – certainly if lawyers and courts become involved.

Everything agreed should be contemporaneously noted, preferably by both sides, as they progress.

Verbal negotiations which are not recorded in some way can result in horrendous disputes and misunderstandings in the immediate and long-term future contractual relationship. Best intentions, endeavours and recollections are as fallible as the folk earnestly expressing them. Professional artists know better; they make notes of items agreed throughout negotiations which, the more experienced they become, they also learn can properly be spread over days, weeks, months, even years, before a satisfactory final agreement is reached. Such notes are then used to confirm with the commissioner the fact that agreement has finally been reached, the detailed terms, conditions and respective obligations. The final professional act is to agree who will then write to whom -‘Shall I write in confirmation to you, or you to me?’. When that has been agreed, it’s hand-shake time, the point of no return.

Indelibly communicate
Just as potential human error requires that notes are made throughout negotiations, so written communication is vital after final agreement People have second, more mature (or sober) thoughts/gut reactions/crises of conscience/sheer panic/third party pressures. It is therefore wise, certainly prudent, to use the contemporaneous negotiation notes to write (preferably type) and deliver a letter confirming final agreement together with terms and conditions, and inviting written acknowledgement in response. This gives the other contracting party an unequivocal statement to consider, hopefully confirm in writing and, if necessary, clarify or indeed reject. The reason for taking this apparently superfluous step is to achieve the highest degree of certainty possible (nothing can be absolutely relied upon) before starting work on the commission buying materials, cancelling other engagements, and so on. If another clarification is requested, give it and try to reach agreement again; if total rejection occurs, the options are to find out why in order to try again, or to accept and walk away; no communication from the commissioner requires further special efforts until a written response is achieved – it is foolish to assume that silence means assent in such circumstances.

The artist usually writes the confirmatory letter, particularly with first-time commissioners. With more complex, monumental or long-term projects, the parties often sensibly agree to refer the formalities to their respective solicitors, rather like a house purchase. The keeping of a duplicate copy by the artist always proves useful, sometimes vital, during the artist’s lifetime, even after death: as an aide-memoire during execution of the work; to help resolve disputes on or after delivery and any installation; to clarify, sometimes prove, matters after the artist’s death, such as inheritance of the artist’s estate, ownership/possession exposition/distortion of the work, ownership of copyright and authorisation of reproductions; and to assist art historians, collectors, dealers and auctioneers to achieve a reliable provenance. Detailed documentation of materials, perhaps techniques used, can be of great value to conservators, keepers, curators and transporters involved in physical handling, storage and insurance.

© Henry Lydiate 1988



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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.