Selling is Easy

Selling work is easy: give it to the buyer and take the money. However, many artists and buyers care about what might happen to the work in the future: buyers are often concerned about originality, size of edition and reproduction rights; artists are often concerned about the care of the work by the buyer, restoration of damage, borrowing work back for exhibition purposes, where and how work is exhibited by the buyer, and re-sale royalty rights; both are often concerned about responsibility for deterioration of the work.

At present, most sales by artists or their agents are made without discussing these things, let alone agreeing on them and putting them into writing. If nothing is agreed about their respective rights and duties at the time of sale the law will impose on the artist and buyer certain obligations – whether they like them or not: (this was described as the ‘Silent Contract’ in last month’s issue). To avoid the unwanted imposition of the ‘Silent Contract’, artists and buyers should discuss and agree their obligations to each other and to the work at the time of sale, put the terms of that agreement in written form, and both sign it.

It was suggested in last month’s issue that one method of gently introducing artists and buyers to the idea of a written agreement is for all artists to start using a Bill of Sale which simply recorded the date and place of sale, described the parties and the work, and specified the price and terms of payment. (Artists and their agents could use a simple carbon-copy book for the purpose, giving the buyer the original and keeping the copy; buyers reluctant to sign the Bill could be given the original signed by the artist or agent alone.) The Bill of Sale will act not only as a receipt for money but also as documentary evidence of the sale. The use of the Bill might be made more acceptable to reluctant buyers if it were given support by artists’ organisations and groups, galleries, museums, regional arts associations and national arts councils; each could approve its use so that it became the approved ‘Standard Artists Bill of Sale’.

After the introduction, widespread use and acceptance of a standard Artist’s Bill of Sale, the next step would be to introduce the use of a standard Artist’s Contract of Sale, which could be developed from the Bill simply by adding to it as conditions of sale, all the matters artists and buyers were concerned about – and changing the title from ‘Bill’ to ‘Contract’.

What follows is a suggestion for an Artist’s Contract of Sale. If the parties wish to omit or amend any or all of the conditions of sale, they should do so.

ARTIST’S CONTRACT OF SALE

Date:

Place of Sale:

Title of Work:

Description of Work: medium/dimensions/size of edition

Sold to: name/address

Artist: name/address

Price:

Terms of payment:

The words and figures set out above describe the date, the place, the purchase price and the terms of payment of this contract of sale of the above mentioned art work. However, in order to protect the future existence and use of the work, the parties further mutually agree as follows:

  1. Originality.
    The artist hereby covenants that the work is his/her original and that he/she shall not produce a replica of it.
  2. Edition.
    If the work is one of an edition (as stated above), the artist hereby covenants that the size of edition shall not be increased after the date of execution of this contract.
  3. Reproduction.
    Although the copyright in the work is retained by the artist, the buyer shall be entitled to permit the reproduction of the work in books, art magazines and exhibition catalogues.
  4. Care of the work.
    For as long as the buyer owns the work, the buyer hereby covenants not intentionally to alter, damage or destroy the work.
  5. Restoration.
    If the work is damaged, the buyer shall notify the artist and give the artist a reasonable opportunity to conduct, or supervise, the restoration of the work.
  6. Artist’s exhibition.
    The buyer shall lend the work to the artist once in every twelve months for a maximum period of six weeks for the purpose of inclusion in a public exhibition of the artist’s works, if the artist gives the buyer reasonable written notice of his intention to do so together with documentary evidence of insurance cover and prepaid carriage to and from the exhibition; provided that the artist ensures that the exhibiting institution identifies the work as belonging to the buyer.
  7. Placement of work.
    If the buyer places the work with any person or institution for exhibition, re-sale, or any other purpose, the buyer shall immediately write to the artist stating where the work is placed.
  8. Addresses.
    Artist and buyer shall notify each other in writing immediately of any change of address.

Signed:
Buyer Artist/Artist’s Agent

Notes

  1. These promises will help the buyer when re-selling or exhibiting the work in the future. ‘Original’ simply means that the work is created by the artist (or at his/her direction) and is not a copy of any other artist’s work; since the work is original, the artist loses nothing by stating this. A ‘replica’ is not a reproduction, and therefore does not affect editions, and the artist is merely promising not to create another original; this promise does not, therefore, affect the artist’s copyright.
  2. This promise will also help the buyer in the future and, together with condition 1, will encourage the buyer to sign the contract when making the purchase.
  3. Most artists do not sell their copyright when they sell work. This condition makes the position absolutely clear, but gives the buyer a right to allow the work to be reproduced in very limited but reasonable circumstances. Artists who wish to retain entire control of reproduction should amend this condition to read: ‘The copyright in the work is retained by the artist’. Artists who wish to sell their copyright with the work should amend the condition to read: ‘The copyright in the work is also sold to the buyer’.
  4. This condition gives the work protection against damage or destruction by the buyer- a safeguard normally lost when work is sold.
  5. Another form of protection for the work – the artist’s right to restore any damage to it – is given by this condition and is, again, not usually established when work is sold. Payment to the artist for restoration work or supervision can be agreed by the parties if, and when, the occasion arises.
  6. This is a benefit to the artist, which he/she would not normally have after selling the work: the right to borrow the work for exhibition purposes once a year. The artist must write to the buyer giving reasonable notice, sending receipts to prove that insurance and carriage have been paid, and having arranged for the buyer to be credited as lender of the work.
  7. This condition also benefits the artist (without taking anything from the buyer) by ensuring that he/she knows where the work has been placed when it has left the buyer’s possession for any reason; this will include delivery of the work to a second buyer.
  8. This condition speaks for itself, ensures that the parties remain in touch after the sale, and should always be included as a condition of sale.

However, the introduction of the use of such a contract would necessarily present many problems and can only come about if artists, art administrators and others involved in the sale of work give active consideration to the matter and press for the introduction of practical solutions acceptable to them. It is hoped that this article will encourage artists to address their minds to the issue of whether or not an Artist’s Contract of Sale should be introduced and if so, what form it should take to best meet their requirements.

The form of contract suggested above does not deal with three important matters: the artist’s responsibility for deterioration of the work; the artist’s re-sale and royalty right; and the binding of second subsequent buyers of the work to the terms of that contract. These will be dealt with in the next issue.

© 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.