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Wherefore Thou Art #8
Artists and Galleries

There is no more symbiotic relationship in the art world than that between the fine artist and the art gallery. If the artist is going to get seriously noticed, itís most likely going to happen in a gallery. And if a gallery is going to do business, thereíd better be something on the walls, and it had better be something created by an artist. In the artist-gallery relationship, there are a few basic legal considerations for all sides to take into account that can mean the difference between a productive relationship and a train wreck. These legal considerations are especially important for when the unexpected or unthinkable occur.

The things Iím going to describe arenít one-size-fits-all rules that apply to every situation. Situations can vary widely. Artist-gallery relationships run the gamut from a small-town consignment sale of a single piece to personal management and worldwide representation. A legal suggestion might be over the top in one situation, but totally inadequate in another.

As a general matter, the old adage ďget it in writingĒ absolutely applies to artist-gallery relationships. Plenty of artists put their works in galleries based on handshake deals with gallery owners; remarkably, this happens even the loftiest levels of the art world, where works sell for in the hundreds of thousands of dollars.

Why is this? Well, itís generally not due to malevolence. Artists and gallery owners sometimes have been doing business for decades and as a result, have developed strong personal relationships; for either to suggest a written contract would be a personal affront. Sometimes itís just how itís always been done. Sometimes the artists donít think to ask for a contract or are afraid that demanding one will be off-putting. Sometimes a written contract is seen by all sides as unnecessary, demeaning, and a capitulation to the over-lawyering of everything we do, and who wants lawyers around anyway? (This is really not an unfounded or irrational position, as far as Iím concerned. But itís still not a reason not to have a contract.)

An agreement is important for a lot or reasons. What happens if the gallery burns down or is vandalized? If the gallery owner dies? If the artist dies? If the close artist-gallery friendship goes South? If the gallery gets sued because the artist plagiarized another work? If the gallery is sold to somebody like Larry Flynt? These things can be dealt with by a simple agreement, and life can go on just like before, except with considerably more security.

With or without an agreement, Massachusetts law does provide a little structure to the artist-gallery relationship (New York State has similar laws). When a fine artist delivers artwork to an art dealer, Mass law says a consignment relationship is established. The dealer holds the artwork in trust for the artist. Up to the sale, the artist, not the dealer, remains the owner of the artwork. The dealer is responsible for any damage to the work. Upon a sale, the proceeds immediately become the property of the artist, and are to be held in trust by the dealer until turned over to the artist. Interestingly, the law says that these requirements canít be waived by the artist, apparently to dissuade unscrupulous dealers from making a waiver of these rights a condition of doing business.

These statutes generally sit quietly and unnoticed in the law books. But they recently took center stage when a Boston-area art gallery went bankrupt. A bunch of creditors were clamoring to sell the galleryís artwork to pay the galleryís debts; a bunch of artists were afraid that their work was going to be sold and they wouldnít get a dime. The Massachusetts branch of the Volunteer Lawyers for the Arts intervened and explained to everybody that Massachusetts law held that the paintings were still the property of the artists, and could not be used to satisfy the debts of the gallery. The artwork was swiftly returned to the artists.

What should be in an artist-gallery agreement?

First, define the nature of the galleryís exclusivity with regard to the artistís works. Will the gallery have any exclusivity? Will it be for a limited geographic area or for everywhere? Are we talking about all of the artistís works or only some of them? Can the artist still make direct sales? Can the artist do barters? Does the galleryís representation include trade shows? Does the galleryís representation include selling Giclees and other prints?
How long will the relationship last? Can either side terminate the agreement before the end date, and how and under what circumstances? Will the agreement terminate automatically if certain things happen? Will the agreement be extended if certain things happened?
Commissions and Payment:
50-50, 60-40, 70-30? Are the percentages of retail price or some sort of net price? Can the gallery discount? Is payment due upon the sale, or quarterly? Who pays for shipping the work, exhibition expenses, etc?
Disclosure of buyers:
Must the gallery tell the artist who has purchased the artistís works?
This should establish when the gallery must provide a receipt, acknowledgement or other piece of paper to the artist. All transactions should be documented somehow, because memories fade and things get lost.
Loss, damage, and insurance:
Whoís responsible for what? Note-- these provisions canít conflict with the artist-dealer statutes described above.
Grants of Rights:
Can the gallery make and sell prints? Can the gallery use images of the artwork in catalogues? Postcards? How about on the Internet?
Indemnity, etc. :
The usual promise that if party A gets sued because of something party B did, party B takes care of the problem.

© 2003 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.