Tuesday, November 13, 2007

Gallery Representation Contracts

Bambino and I were interviewed recently by a charming and very smart young writing duo who are working on a how-to book for artists that's being published by a major publishing house soon-ish. We'll give you plenty of info when it's closer to the time that you can get a copy for yourself. It does sound as if it will be very helpful.

One of the questions that came up during the interview, though, dealt with representation contracts, and I made some statements about them that I only later realized were perhaps only my opinion and not representative of how artists and other galleries feel. So I thought I'd solicit other folks' feelings about the use of such documents.

We don't use representation contracts in our gallery. We have an open and ongoing discussion about what representation means, and we do use consignment forms in most circumstances, but the notion that an artist is legally bound to remain with the gallery if that's not their desire strikes me as counterproductive to what we're trying to do.

Mind you, I've talked with lawyers and even attended panel discussions where all kinds of horror stories were told warning of the dire consequences of not having contracts, but I've concluded that most of those situations were only horror stories because of the amount of money involved, and, well, our gallery is still young enough that we're not seeing the sorts of prices that necessitate such contracts yet (I can hear the lawyers gasping from here).

The long and short of my own aversion to such contracts has been the sense that they're kind of like pre-nuptial agreements. Good perhaps if you're talking small private fortunes, but perhaps a pointless symbol of mistrust if you're not. Also, knowing that no amount of discussing what representation means before one signs a contract can anticipate all the possible reasons one might want a change down the road, and, well, I have enough aggravation in running a small business without adding resentment like that to the mix.

Still, I realized that even though I feel this strongly about representation contracts and have discussed them here before, I've never actually sat down to draft one. What should/do they contain? I found a list of what they might contain on the New York Foundation for the Arts
website. They recommend:

Formal contracts should be signed prior to the start of your representation. Here are all of the possible points that need to be covered. Not all areas may be relevant to your situation. Customize a contract that suits your individual needs.

  • Parties Involved in the Contract – (the gallery and you).
  • Duration of the Contract – (fixed term, contingent on sales, options to extend the term of duration).
  • Scope of the Contract – (media covered, past and future work, gallery’s right to visit the studio, commissions, exclusivity, territory, studio sales, exchanges, charitable gifts).
  • Shipping – (who pays to/from the gallery, carriers, crating).
  • Storage – (location, access by artist).
  • Insurance – (what is protected, in-transit, on-site).
  • Framing – (who pays for framing).
  • Photographs – (who pays, amount required [color and b+w], ownership of negatives and transparencies, controls of films).
  • Artistic Control – (permission for book/magazine reproduction, inclusion in gallery group exhibits, inclusion in other exhibits, artist’s veto power over purchasers).
  • Gallery Exhibitions – (dates, work to be shown, control over installation, advertising, catalog, opening, announcements/mailings).
  • Reproduction Rights – (control prior to sale of work, retention on transfer or sale of work, copyrights).
  • Damage or Deterioration – (choice of restorer, expense/compensation to artist, treatment for partial/total loss).
  • Protection on the Market – (right of gallery to sell at auctions, protection of works sold at auction).
  • Selling Prices – (should address who bought your work, the selling price, initial scale, periodic review, permission discounts, negotiation of commissioned works, right to rent vs. sell).
  • Billing and Terms of Sale – (extended payment, credit risk, allocation of monies as received, division of interest changes, qualified installment sale for tax purposes, exchanges/trading up, returns).
  • Compensation of the Gallery – (right to purchase for its own account).
  • Income from other Sales – (rentals, lectures, prizes/awards, reproduction rights).
  • Accounting/Payment – (how often, right to inspect financial records, currency to be used).
  • Advances/Guarantees – (time of payment, amounts and intervals, applications to sales).
  • Miscellaneous – (confidentiality of artist’s personal mailing list, resale agreements with purchasers, rights of gallery to use artist’s name and image for promotional purposes).
  • General Provisions – (representations and warranties, applicable laws, arbitration).
Although I fully agree with all but one of those areas being discussed in full before the gallery and artist agree to representation, I have never had a situation where I thought a contract would have led to a better outcome for either the gallery or the artist when an issue came up. I can see the day when that might change though. The item on the list that makes me uncomfortable is the second one: Duration of the Contract.

OK, so that's my take on them. What's yours? Do you want a written contract with your artists/gallery? Do you have any anecdotes that would change my mind about them? What does it say to artists if a gallery insists on a 5-year contract, for example. Is that attractive (because it demonstrates their commitment to your career) or off-putting (because it suggests you might be locked into a bad situation)?

Labels:

44 Comments:

Blogger Ethan said...

I don't like the idea of a contract that handcuffs the artist and gallery to one another (I agree that either party should be able to end the relationship if it isn't working). But I do like the idea of outlining the specifics of the agreement (i.e., the list you posted) on paper (or email).

My attitude about contract is that it isn't about having a hammer to hit someone with (or be hit with), but a tool for making sure all the issues have been thought through and discussed... and also a tool for reminding the parties the specifics of the deal.

The thing to avoid are contracts that were written by lawyers... much better to just write up a letter of agreement between the two parties. (Lawyers don't really help--they just make things expensive, confusing, off-the-point, and possibly unfair).

11/13/2007 08:29:00 AM  
Blogger Ethan said...

One other thought... a very important item that the list from New York Foundation for the Arts doesn't mention:

* The process for ending the relationship

Is written notice required? When/how are any advances paid back? Does the gallery have the right to continue representing the work from a recent show for a certain amount of time? Etc.

11/13/2007 08:36:00 AM  
Blogger Tracy said...

I have written about contracts on my blog and frankly, if I am going to send more than a few paintings to a gallery, I want a written contract or a consignment contract at the very least. In my experience, so far anyway, having the terms clearly outlined in writing helps to avoid any misunderstandings by either party later on. Many of the points are negotiable, and I agree with Ethan, the process for ending the relationship should be specific and should be the same for both parties.

If the gallery won't negotiate then the artist should really reconsider. I was offered a contract once from a gallery in a big city, not NY. The terms stated that the artist would be responsible for shipping to and from the gallery (cross country from me) and that the gallery would not be responsible for insuring the work while it was in their gallery. Those points were not negotiable on their part and as difficult as it was for me, I turned down their offer. What a mess it would have been if I had started to work with them without knowing those terms in advance!

11/13/2007 09:06:00 AM  
Blogger Edward_ said...

I guess I should clarify that the part of the contract for representation that makes me uncomfortable is the obligation to remain with the gallery even if the artist wants to leave. I wholly support being as detailed and clear about the conditions of working together as possible.

11/13/2007 09:12:00 AM  
Blogger Tracy said...

Oh and by the way, I can sure be the one to misunderstand. Once when I began working with a gallery, the gallery director and I had a phone conversation that outlined their terms, which were reasonable and which I agreed to. I scribbled down a few illegible notes, then promptly forgot the geographic considerations because it seemed so improbable that I would have any other opportunities in that same area. A few months later, in casual conversation I told the director about an event I would be involved in was reminded that the location of the event violated their terms. I felt really stupid and unprofessional and suggested that I needed the terms in writing. Which led to a more formal agreement, one that I can refer to if I have a question. So definitely my concerns about having a written contract are not only because I am worried about the gallery! Artists forget things too:)

11/13/2007 09:22:00 AM  
Anonymous Anonymous said...

Of what value is the contract except in determining damages for breach of contract.

That said, if any of the things listed would become actionable to either party then would you as a gallery be willing to invest the time and money to pursue litigation.

Perhaps with some very high profile artists who command large amounts of money this becomes relevant. But for the rest of us the artists are too poor to either start or defend litigation., and the gallery is probably not much better off either in the long run. The cost to benefit from a business point of view would be a wash at best once lawyer fees and lost productivity are calculated in. There is also the possibility of loss of confidence in the gallery by other artists within the stable that is uncalculatable regardless of culpability or outcome.

The end result is a breakdown of the relationship between artist and gallery. All that should be left to really discuss is payment for art sold and return of art in storage. Under consignment the ownership of the art is not in question so return must be forthcoming on demand by the artist, and commission is covered in the consignment agreement.

In the end I think that a gentleman’s agreement of rules of engagement not only suffices but also shows the trust and respect I insist on having in the other party before leaving a large amount of my irreplaceable art in their care.

11/13/2007 09:29:00 AM  
Blogger Edward_ said...

f what value is the contract except in determining damages for breach of contract.

I think the value is more in line with what Tracy has described. There are complex situations in which having a document to refer back to, if only to serve as a baseline for a discussion, makes sense to me. In fact, I'm beginning to think a contract/agreement that covers everything except the duration of the arrangement might make sense.

11/13/2007 09:34:00 AM  
Blogger Franklin said...

Two points--
1. Re duration of the contract: this is pretty essential because it usually dovetails with the effective date (a gallery may have already started showing work or moving forward with aspects of the relationship (gathering images) and you want to be clear from what point the terms of the contract govern. As for a specific ending point, you can be very creative with this-- either a strict date by which it must be renegotiated or it terminates, or a rolling extension (a la a lease) or until terminated by which ever method the parties choose (unilateral notice, default etc.). Also you may want certain provisions to extend beyond the termination of the contract (provisions regarding confidentiality for instance). It does not have to lock both people in-- termination can be by notice by either party.

2. I strongly disagree with Ethan's comment regarding the inutility of consulting lawyers (full disclosure, I am one). While I would encourage the parties (artist/gallerist) to come up with an agreement on all the business points to the extent possible prior to consulting with an attorney, having a contract reviewed by an attorney experienced in the arts will help prevent mis-understandings down the road. Attorneys help add specificity and point out areas where a word can be subject to several different interpretations ("exclusive" for instance). Non-lawyers also don't necessarily understand how or why they want arbitration, a certain state's law to govern a contract, certain damages provisions and other details that an attorney can advise upon (which while mundane are not "off-the-point" should their be a future disagreement... which is at least half the point of having the contract).
While I am sorry that perhaps Ethan has had bad experiences, a good attorney adds clarity, detail and value to the process. (That said, if you absolutely cannot or will not seek review of counsel, then something in writing is better than nothing. Two people can have honestly different recollections of a conversation.)

11/13/2007 09:34:00 AM  
Anonymous Anonymous said...

Yes Edward, but the value in the contract is only as good as the willingness of the participants to enforce the rules of the contract through the only means possible, litigation.

My point is that the moment this happens there is a complete breakdown of the artist/gallery relationship. At which point I would no longer be willing to leave my art which I consider to be more than mere stock in your care. From your point I doubt you would be very willing to sell the art of someone you are engaged in a pending lawsuit with.

11/13/2007 09:41:00 AM  
Blogger Edward_ said...

Yes Edward, but the value in the contract is only as good as the willingness of the participants to enforce the rules of the contract through the only means possible, litigation.

Yes, I see what you mean now. And you're right. In fact, this is why I deem contracts rather pointless for legal determinations until we're talking serious chunks of change. Then it might be worth litigation to protect oneself. Until then, though, I still think a contract or written agreement is helpful if it records the agreement, serves to remind both parties what was agreed to down the road (explaining expectations, decisions, disappointments, etc. when they come up), and helping overall to preserve the good will of the relationship. A artist-said--gallery-said argument might take on a life of its own when a simple reference back to a document will help one side or the other understand where the other side is coming from.

I guess I'm imagining, for us, a more comprehensive consignment form. We cover most of the points in the list above on our consignment, but some are not covered, and perhaps that's all that's really needed...until we're talking serious money, that is. Then, I think it's in everyone's best interests to get the lawyers involved.

11/13/2007 09:48:00 AM  
Anonymous Anonymous said...

I also don't like the idea of contracts, and think that relationships can and should grow or diminish more fluidly, and through discussion, over time – but that’s an ideal that doesn’t always work for me in practice. I admittedly don’t have representation as you do it, Edward, but I do have galleries I work with regularly in two cities on different continents, and who have invested in me through publishing, catalogues, framing, etc. And although I feel loyal to them, I have to admit that I’ve run into ‘expectations’ trouble on both sides of the spectrum because of ill communication, or things not being in writing. Let me be clear that these aren’t horror stories by any stretch of the imagination. But they illuminate that the ideal of “no contracts” and “we can work it out easily” is not always what we imagine. (I decided to delete cities and gallery names and remain Anonymous. None are American, so don’t bother guessing.)

One local [City 1] gallery I work with was wonderfully attentive to artist needs and conceptual frameworks, and beginning to expand as we started our relationship. They expressed interest in wanting to travel their exhibitions to [City 2], going to international fairs, and courting collaborations with overseas galleries. Unfortunately, as they grew they discovered they were terrible with administration and did not want to hire more help, and so none of these things happened (and this came to light only after I turned down a [City 2] show with another gallery). Additionally, due to the busy work of doing all things with no assistance, the kind of care I was initially granted is all but gone: I currently live in [City 3], and I recently spent 3 weeks in town, letting the gallerist know a month in advance that I would be there, and could not a meeting, despite the fact that she asked to do another show with me next year. This is not a deal-breaker, and I plan to still work with her on a small scale in [City 1], but I may have done several things differently, or gone to a [City 1] gallery with more open doors and more time to talk, had I known. Tangential, but an important factor: she also never sent me details for a suite of prints she published with me until after the fact, and only then did I realize she had doubled her commission rate without telling me. I probably would have done it anyway, because it was initially low and a great opportunity, but it would have been nice to know beforehand…

I hate being with one gallery and pining another (even if it’s an abstract one) – it feels dirty.

(Story #2!) Fresh to [Different Country/Continent] last year, and knowing little about anyone or anything local, I was a bit too flattered by a new gallery with an excitable journalist as its founder. Although he knew very little about art, and in retrospect I realize I found much of what he said about it troubling, he was charming and thrilled about my work, and wanted only to exhibit it and sell it locally, in [City 3]. I figured, “what could go wrong?” when he offered to publish a suite of new prints for a small exhibition. We said, explicitly, no contracts; we’ll start small and see where it goes. Before I knew it, he was presenting my work overseas, to important curators and spaces – and presenting it badly, with spelling mistakes, incorrect historical references, and a misunderstanding of the conceptual frameworks he was saying my work was “about.” Again, I still work with him locally because he invested in me, but I had to formally draw concrete boundaries, and it put a strain on our relationship. Again, I mightn’t have gone into it “had I known.”

Ideally, I’d love to be with one gallery in one place that approached their artists with enough care that it was clear art and discourse came first, but professionalism a close second, and worked to introduce and represent me to international audience, all the while giving critical feedback and support (wow, that was so nice to dream that up – maybe they could be good friends and have a kid the same age as mine, too?). It’d be even better if we could, as you say, discuss it over wine and it happened exactly as we planned it, with everything on the table, casual but professional. But to be honest, if I knew what I was getting into (I’m more careful these days), and I still wanted it, I’d have no problems signing the dotted line… These days, even though it’s not a contract per se, I actually find myself sending emails after any “casual” meeting, double checking on what was said and who is to do what, and making sure I have it saved on my hard drive “in writing” of sorts. I even ask for “confirmation,” though I say it’s for “my records.”

Honestly, I hate it.

11/13/2007 09:51:00 AM  
Blogger Edward_ said...

One thing I realize when thinking about the awkwardness of a contract is that it's only awkward because there is no industry standard more or less written in stone on some of these issues. The 50/50 split, for example, would be an equally uncomfortable discussion if it were not so widely the standard.

I have a friend in the entertainment industry, and we're talking a lot more money there than we are in general with visual artists, and talking with him I get the idea that contracts are such a standard part of the business that no one thinks twice about them. They know they're coming, they understand it doesn't mean the producer or agent or whomever doesn't love/trust/believe/understand them. They've taken all the personal out of them and they're just business. Yes, the terms are still debated furiously, but when that stage is over, no one is surprised at how or why each side took the stance they did. They don't always come to an agreement, but that's OK as well...maybe next time they will.

11/13/2007 10:05:00 AM  
Blogger Ethan said...

Franklin said: While I would encourage the parties (artist/gallerist) to come up with an agreement on all the business points to the extent possible prior to consulting with an attorney

I agree that the main problem is when the business points are left up to the lawyers to determine... and that really was what I was thinking about.

Still, I do think lawyers would be overkill for a gallery/artist agreement (unless one of the parties feels over her/his head). The place I'd want a lawyer is when I'm dealing with a corporation rather than an individual person (corporations are designed to get the best deal for their shareholders, not to be fair... plus the spirit of the deal may be forgotten as people shuffle around at the corporation) or signficant sums of money (e.g., greater than $100k).

11/13/2007 10:14:00 AM  
Anonymous Anonymous said...

EW:

Are you a LLC?

Luc T.

11/13/2007 10:44:00 AM  
Blogger Edward_ said...

No...an S corporation.

Is it wrong to share that online? I have no idea. I imagine one simple phone call to the State would tell anyone who wanted to know.

I've spent too much time on Postsecret this morning. I'm paranoid now.

11/13/2007 10:49:00 AM  
Anonymous Anonymous said...

No dear,...is public information...

11/13/2007 10:52:00 AM  
Blogger Edward_ said...

That's what I thought, darling.

It was merely on the heels of feeling embarrassed about reading those secrets that made me question it.

11/13/2007 10:53:00 AM  
Blogger Jonathan T. D. Neil said...

I have a friend in the entertainment industry, and we're talking a lot more money there than we are in general with visual artists, and talking with him I get the idea that contracts are such a standard part of the business that no one thinks twice about them.

I think we need to get over the idea that simply because there is "less" money involved in the visual arts that this somehow takes the utility or even necessity of contracts out of the picture. In fact, the argument should work the other way: because there is less money involved, it is that much more important that all of the terms be laid out and clear. If I'm not mistaken, most artists would like to be able to live off their work. That many don't, or can't, is unfortunate, but this is no reason to leave to chance the financial arrangements and obligations one has with a gallery or dealer. I write for an art magazine, and we have a contract. I teach for the New School, and we have a contract. In both cases, the money is paltry, paltry, but each scenario entails contractual obligations, rights, etc. which have been set down in print. The money is not, and should not, be a determining factor here.

11/13/2007 10:59:00 AM  
Blogger Ethan said...

Just to clarify my earlier corporation bashing... I wasn't really speaking of small companies that have incorporated for liability reasons (or what have you)... I'm really thinking of corporations that are large enough to be impersonal. When shareholders are involved, the employees of corporations are obligated to act in a way that maximizes shareholder value--which means you'd better have a contract that makes treating you poorly results in the shareholders being hurt.

11/13/2007 10:59:00 AM  
Blogger Ethan said...

I teach for the New School, and we have a contract. In both cases, the money is paltry, paltry, but each scenario entails contractual obligations, rights, etc. which have been set down in print. The money is not, and should not, be a determining factor here.

If the teaching contract you have with the New School is like others I've seen, it really falls more in the category of a letter-of-agreement (at least in my mind) than a full-blown contract. It sounds like most of us agree it is a good idea to have expectations clear & in writing... it's just a question of whether it's necessary to have document that starts sounding like:

Ethan Ham (hereafter to be referred to as "THE ARTIST") shall indemnify Gallery Joe (hereafter to be referred to as "THE GALLERY") from all... etc.

I suspect your teaching contract was in plain English and you didn't feel the need to consult a lawyer to understand it before signing.

11/13/2007 11:08:00 AM  
Blogger Edward_ said...

I understand in theory where you're coming from, Jonathan, but there's a difference between a small gallery and/or an artist on one side and your situation with the magazine or school, both of whom, I assume, have the resources and interest in ensuring you comply with the terms of the contract. If you're talking about a dispute over a $3000 drawing, for example, is it worth taking it to court, even if you have a contract, for either side? Perhaps to set a precedent, perhaps for personal satisfaction, etc. but until the amount of money you're talking about (and you're always talking about money ultimately) would cover the legal expenses and then some, I'm not sure I agree it makes sense. I'm open to being convinced otherwise, but the comparison with the magazine or school doesn't do it for me, because I know they will prosecute to establish the precedent and have the funds to do so.

11/13/2007 11:08:00 AM  
Blogger Joanne Mattera said...

Thanks, Ed, for bringing up this topic. If there’s one definitive statement about the artist/gallery relationship, it’s that there is no definitive statement.

I work with a number of galleries around the country, and I have found that everyone does it differently. While there’s always a consignment, sometimes it's just a list of works delivered and received; other times it outlines a few terms: percentage of commission, the terms of shipping, insurance; the terms of selling out of the studio, etc. With a few galleries I still sign a contract before a show, which outlines the responsibilities of both parties and the length of time that the contract is in force, but mostly that has evolved (or devolved?) into a gentlewoman’s agreement. In part this is because the gallery and I have worked together. They know I will deliver on time. I know they will be responsible for the work and pay on time.

The dealer and I have gotten to the no-contract stage over a period of a couple of shows. The consignment remains necessary—if only for both parties to keep track of inventory—but the other issues have been resolved. Shipping? Work with a gallery long enough and they pay for shipping because they sell your work. Insurance? They must have it. Disclosure of who buys your work? You often meet your collectors at your opening; sometimes you all go to dinner or for drinks. This is a relationship, and like all relationships, the details get worked out over time. Trust and respect are part of it.

However, when I start a relationship with a new gallery, I do want to know about shipping, insurance, payment, disclosure, advertising, art fairs, promotion, etc. If a fixed-period contract will guide me here, I’ll sign it. You learn a lot from a group show. I would avoid committing to a solo show until I see how the work is treated, what kind of promotion is done, how prompt the payment it, how well I’m treated. Action speak louder than any contract. Also, if I know an artist represented by the gallery, I ask them what their experience has been. (And it has happened that artists have done the same with me. I welcome these opportunities, because they me say, “This is one terrific dealer!” Or, “If you get involved be careful and here’s why.”)

One thing I wouldn’t do is sign a chained-together-for-all-eternity contract. Sometimes even good marriages come to an end.

11/13/2007 11:11:00 AM  
Anonymous Anonymous said...

Let me ask Edward.

Lets say you decide to start using time based contracts. How would you deal with an artist whom you had a contract with that you took on 5 years ago on a 5 year contract. Long enough to hopefully recoup losses from the initial years of building the artists name and stature. You agree to 5 more years with one solo show per year plus representation at art fairs etc. The artists’ work then changes substantially to the point where you feel that they no longer fit in with the rest of your stable and you no longer wish to represent them.

You are now legally obligated to show the artist for 5 more years until the contract runs out or compensate them for losses incurred due to your non-compliance. If a termination clause is inserted into the contract for easy dissolution of the agreement then in essence the contract is meaningless as both can simply walk away at the first disagreement. The contract must bear sufficient penalty for non compliance by either party to be of value.

I still think the artist/gallery relationship is a type where it requires both sides to work with each other within the spirit of an agreement. But an informal one that allows both sides to easily terminate. The fear of termination within a mutually beneficial relationship should serve adequately to resolve any disagreements or allow the relationship end as quickly and painlessly as possible.

11/13/2007 12:56:00 PM  
Anonymous Anonymous said...

http://howsmydealing.blogspot.com/

11/13/2007 01:24:00 PM  
Blogger batswap said...

The first time I ever dealt with a Gallery in New York, I asked them to sign an agreement saying they had the work, and agreed to return it. I was the only artist in the exhibition that did this, although they did have to do this with other galleries. It was looked at as a sign of mistrust, and they didnt wish to continue any sort of relationship with me. I use an agreement the first time I deal with any business, and it is a business after all. The idea that these things should be done as a gentlemans agreement is a joke. Anyone who isnt willing to define some peramaters even if its as simple as I have the work and agree to give it back, if they are willing to sign to that, you most likely shouldnt deal with them. That is part of the artworld I find extremely disagreeable, I dont know the dealers personally, I am not certain I wish to be their friends, it would be nice to get to know them, but to have to be their friend in order to get a foot in the door is also distasteful and I believe leads to many of the misunderstandings that you are discussing here.

11/13/2007 02:05:00 PM  
Blogger batswap said...

arent will ing to sign that I meant..

11/13/2007 02:08:00 PM  
Blogger fisher6000 said...

I think that it's important to communicate clearly and equitably.

I have had a gallery that did not communicate at all with me about anything until the last minute, and that created a lot of mistrust on my end, even though everything worked out better than great.

I have worked with an institution that made me sign a contract/letter of agreement, that clearly outlined what the relationship was and what I was responsible for, and it was helpful to have that structure in place.

But a letter of agreement does not always equal a real understanding, and I can see why Edward, you want to do more of a conversation-based thing.

As a freelancer, I have agreed to a situation that felt wrong, but went ahead and wrote a letter of agreement, thinking that there would be no problems later because I wrote everything down and it was agreed to.

WRONG! That letter gave me the worst sense of false security and wound up totally burning me, because the letter did not make the client less of a butthole.

I guess the moral of the story for me is that it's good to write things down and be clear, but that it's entirely possible to write things down and still not be clear, and that it's more important to trust one's gut than a piece of paper.

11/13/2007 02:40:00 PM  
Anonymous pedro velez said...

Not signing a contract has got me, (and a group of artist not only from PR but also NY), lost art, unpaid comissions and multiple headaches. Not that with a contract things would have been different but at least with it our complains would have more credibility in the artworld.

11/13/2007 03:04:00 PM  
Anonymous Anonymous said...

I agree in theory that many of the things on the NYFA list should be discussed and agreed to, and probably in writing. But the fact is that most of the time, because there are more artists than "spots" for them at a gallery, an artist is in the weaker position from the start. An artist is lucky to get shown at a gallery and if she puts up any kind of fuss or makes any demands that are not part of the gallery's normal way of doing business, she can be rightfully worried that the gallery may not wish to continue doing business with her. Not as a grand gesture of retribution, but just because it is easier for the gallery to work with artists who don't ask so many questions, don't take up so much time, don't insist on knowing everything.

I work with several galleries on both coasts, including in NY, and I have never had a contract. Consignment forms yes, but they don't detail anything more than what pieces they have and the selling price. All of the dealers are what I would consider somewhat quirky, and all like to feel that they are doing business with people that they like and get along with and, I get the feeling, would not look kindly on being asked to sign a contract. And most of the galleries I've dealt with have not done everything to my satisfaction, but does it behoove me to complain and maybe be dropped from the gallery? No, it does not. In theory, one should not be in a relationship where one feels unable to negotiate terms, voice complaints, etc., but real life doesn't always work that way. At many jobs you don't want to complain because you don't want to lose your job because jobs are hard to come by. Same with galleries. I don't like to see myself in the weaker position in a relationship, but facts is facts.

kalista

11/13/2007 03:07:00 PM  
Anonymous Anonymous said...

Batswap and Pedro Velez

I won’t disagree that a contract has value if something goes wrong. But the threat is only as good as long as you are willing to carry through on it.

Potential damages are only for 50% of the retail value of the work. Likely the lawyers will cost you more than that. and in small claims you will have to travel to NYC to represent yourself at additional cost.

Also didn’t they offer you a consignment agreement? That should establish ownership, length of loan and commission.

11/13/2007 03:08:00 PM  
Anonymous pedro velez said...

yes Batswap, there's a paper trail and all that but it's a long story ... hopefully it ends soon in Basel, we think the dealer is doing Basel, spending money he doesn't really have, to claim bankrupcy after that, an avoid all responsability.

11/13/2007 03:16:00 PM  
Anonymous Anonymous said...

I had some work at a flat file in a gallery in Germany (works on paper which I paid to send there) and I got an email recently from them asking me to pick it up "next time I'm in Berlin". WTF? When I wrote back to ask them to send the work back to me by mail, I got no response. In retrospect it would have been a good thing to have agreed on who pay return shipping, but at the time I was happy to just send off a couple of pieces and expand my contacts in Europe.

another anon

11/13/2007 03:21:00 PM  
Anonymous Anonymous said...

I’m the first anonymous not the second. I guess I should sign in.

I don’t agree that the artist is in a weaker position. Each position has weaknesses. Say Edward takes you on as an emerging artist and over 3 years shows you three times. On the books he incurs $23500 in costs for $30000 in sales with a steady increase in sales year over year. He in turn pays you $15000 after his commission and remains $8500 in the red on having you as part of his gallery and showing you. He has placed a certain amount of trust in you as an artist to carry on your part of the bargain in hopes of potential return. Hardly exploitation. Nevertheless you feel he hasn’t served you well and you want to force him to highlight your work at Miami. He says no because you are being unreasonable to him and the other artist in the stable. You threaten to leave. If carried through you both will pay a price so the incentive is on both of you to work out a compromise.

Taking you on as an artist is a financial risk to the gallery. That is why they ask for 50%. Putting on a show by you and selling nothing is a financial loss to them primarily as you will retain ownership of the product. Walking away with leave you homeless as an artist. You both stand to lose, hence the incentive through the pain of loss.

Even if you are an artist in the black, there is still loss to them in that they invested the time and money to build your reputation. If they didn’t do that then still they will suffer loss by virtue of loss of a marketable artist and potential commissions.

11/13/2007 03:34:00 PM  
Anonymous Anonymous said...

I don't know about the "loss of a marketable artist and potential commissions". What with the collectors wanting to buy the work of younger, hotter, newer artists, if you are an artist that hasn't sold all that well (or, depending on your point of view, you might say that the gallery hasn't sold all that much of your work), the gallery might be better off, sales-wise, showing some unknown recent MFA than someone they have already investing time and money in. Ed, your thoughts on this?

first anon ("another anon")

11/13/2007 03:43:00 PM  
Anonymous oriane said...

Off topic, Ed - postsecretz is good, but have you checked out http://lolsecretz.blogspot.com/
? The best!

11/13/2007 03:48:00 PM  
Anonymous bambino said...

Totally agree "first anon" not "the second anon=another anon"

11/13/2007 05:20:00 PM  
Anonymous Anonymous said...

Basically; representation, selling work (it, your), exhibitions and consigment are all different things.

Each has it's own set of documents/contracts.

Not making sure what kind of "relationship" you have with a dealer puts you at a disadvantage.

Be sure. Get a copy.

11/13/2007 05:50:00 PM  
Anonymous David said...

I've never had a contract with a gallery, but I can see ways in which one might be useful. It seems to me the only kind of contract that serves any positive purpose is one that defines terms that both parties feel are fair. If it's just a pre-lawyered form that one party insists the other sign "as is", there's great reason for mistrust right from the beginning. (By the way, I'm not knocking lawyers. I think they're useful for helping to get an agreement into writing in a legally clear way).

I've often had day-jobs in the entertainment industry, and have had to deal with a range of contracts for my work. The best ones define each party's rights and obligations, but allow either party to end the relationship at any time. The worst ones are one-sided. I worked for one big movie studio that had me sign a one-year contract with two renewal options. What this meant was that they were obligated to keep me employed for a year, but I was obligated to keep working for them for three years if they chose to renew the options. It was a big mistake, and I'll never sign another contract like that again.

11/13/2007 06:54:00 PM  
Blogger Sean Capone said...

Charles & Thomas Danziger (lawyers specializing in art law) wrote a good column on this in the June issue of Art & Auction. Don't know where you can reference this but here are some excerpts, I found it very educational.
"...the scant case law on artists moving to competing galleries favors the artists when there is no contract. A leading precedent is the 1992 decision Sonnabend v. Peter Halley (who was defecting to Gagosian). Sonnabend argued it had an exclusive oral contract to represent Halley, specifying a share of sales proceeds and a monthly payment in advance of future sales. Sonnabend failed to stop the artist's defection and the new exhibition at Gagosian; stated the NY State Supreme Court: "If anything is clear in this case, it is that this was a contraact with many terms missing, to wit, its duration, the method of terminating it, how and whe amounts of consideration would be reviewed."

Danziger cites another case which 'underscores the need for galleries to have written agreements with their artists': Koeniges v. Woodward. The dealers (Woodward) drafted a contract for an exhibition of photos by the artist (Martin Koeniges) but he never signed it. The Woodwards spent over $17K to mount the exhibition with a lot of fanfare, but failed to sell any of the work. A dispute followed, and Koeniges sued for the return of his work; the NY Civil Court found the oral agreement for the exhibition and exclusive rights to representation was unenforceable under a rule of law called "Statute of Frauds," which requires any agreement that cannot be fully performed within one year be put into writing to be binding. What they suggest is that an oral agreement to represent an artist 'in perpetuity' would violate the Statute's terms.

In other words the anecdotal case evidence seems in favor of the artist. They cite New York's Arts & Cultural Affairs Law which states that when an artist delivers a work to a dealer for sale or exhibition, unless the artist is paid in full, the dealer automatically becomes the artist's agent with regard to the work. The work also becomes property held 'in trust', and when sold the proceeds must go to the artist. This is to prevent dealers from keeping unsold works as reparations for a perceived violation of a non-binding relationship (like a handshake agreement).

The point of this article was written in defense of the point of view of the abandoned gallerist, urging for their sakes to work with some sort of written agreement that spells out the terms Edward listed above. Hopefully, in the event of an artist's defection, that's a sign of an upwardly mobile market for that artist, for which the original gallerist could reap financial rewards, assuming they believed in the artist enough to purchase some of their works outright...

The art world is full of many unwritten 'rules of conduct'. Can anyone explain to me why the gallerist should get first pick to buy back an artist's work before it goes to the secondary market? Or how, for that matter, does an artist make money from the inflation of his prices on the secondary & auction circuit? This seemed to work OK (maybe) in the days when the art world was basically very elite and provincial. Does the gentleman's agreement have any value in the new global, investment-oriented art market?

11/14/2007 02:37:00 AM  
Anonymous Lisa Hunter said...

A contract is important for the artist, because if cases the gallery goes bankrupt while holding a number of the artist's works, it may be hard to prove later that the works were on consignment and not part of the gallery-owned inventory.

11/14/2007 08:44:00 AM  
Blogger rohren said...

I'm an art professor in a lawyer's body--a lawyer who focuses on contracts and contract litigation. I understand the general dislike for lawyers, but the reality is that non-lawyers typically are ill-equipped to identify and address the myriad issues that any contract of this sort raises. I was reminded of this today, when I noted these comments in an e-mail message regarding alternative dispute resolution provisions in insurance policies (which, generally speaking, are deemed to be contracts subject to the "rules of interpretation" that govern contracts):

No one expects to become embroiled in a claim ..., but the possibility is far from remote.

* * *

Given the reality of potential coverage disputes ..., it is wise to carefully check the dispute resolution provisions in the [contract]. Most such provisions address this possibility by means of "alternative dispute resolution" (ADR) provisions.

Among the points that demand particular scrutiny in any ADR provision are the following.

* Mandatory or Optional? Is arbitration mandatory in all instances, subject to demand by either party? Or, can it be entered into only at the election of the policyholder? The latter is the most favorable version for an insured, since there may be situations in which counsel for the insured does not feel that arbitration is the ideal forum for resolving a dispute.
In other words, the best provisions from the insured's standpoint are those giving the insured the option but not the obligation to submit a coverage dispute to arbitration.

* Preconditions to Arbitration. Do the provisions require that the insured first submit disputes to nonbinding mediation in an attempt to reach an agreement? Most do not, but a handful of forms contain such a requirement.
The problem with this approach is that assuming each party pays its own costs, the (usually) stronger financial position of the insurer may have the effect of "wearing down" the insured, thus compelling a settlement, prior to arbitration, that is not in the insured's best interests.

* Binding. Are the results of the arbitration binding? Under most, but not all, policies, arbitration is binding. Whether this is to the insured's or the insurer's advantage depends on the outcome of the arbitration and the facts underlying the dispute.

* Venue. Does the provision state the venue in which the arbitration must take place? If so, does it favor the insurer or does it make arbitration burdensome to the policyholder? Under some policy forms, for example, an insured may be required to appear at an arbitration in the United Kingdom, a situation that would clearly put a U.S. insured at a disadvantage.

* Law. Is the controlling law stipulated? Again, assuming the policyholder is an American, U.S. law in a specifically enumerated state should control the arbitration proceedings rather than the law of a country outside the United States.

* Panel Composition. Is the approach for selecting the arbitration panel reasonable? Usually, the provisions call for each participant to appoint one arbitrator, both of whom choose an umpire. Sometimes there is a change from this, whereby restrictions are placed on the background and experience of the arbitrators, and these could work to the advantage of one of the parties, usually the insurer that drafted it.

* Costs. How are the costs of arbitration allocated between the parties?
Usually, each side must pay its own costs. To be avoided are provisions requiring the insureds to pay the insurers' costs, in addition to their own.

Given the chance that an insured will, at some time, be engaged in a claim dispute ..., insureds (or their representatives) should carefully analyze these points and, if any appear onerous, attempt to negotiate more favorable wording.

My conclusion: Having a contract probably makes sense. Having one that makes sense--well, that makes even more sense.

(By the way, I love that the "Word Verification" for leaving this comment is "gzjjghls"! It will be my "word of the day" ....)

11/14/2007 09:33:00 AM  
Anonymous Anonymous said...

In response to:
"Anonymous said...
I don't know about the "loss of a marketable artist and potential commissions". What with the collectors wanting to buy the work of younger, hotter, newer artists, if you are an artist that hasn't sold all that well (or, depending on your point of view, you might say that the gallery hasn't sold all that much of your work), the gallery might be better off, sales-wise, showing some unknown recent MFA than someone they have already investing time and money in. Ed, your thoughts on this?

first anon ("another anon")

11/13/2007 03:43:00 PM"


haha this is funny-perhaps you are an MFA candidate about to graduate-hmmmm??

-heidilola

11/15/2007 12:43:00 AM  
Anonymous Anonymous said...

Great to find all this, I'm an 'emerging' artist in the UK, and have a couple of galleries making different demands and it's all a bit confusing. Thanks everyone for all your posts. Charlie

11/24/2007 12:57:00 PM  
Anonymous Anonymous said...

I've read through most of the comments & many seem to be from artists stating they do not want to be locked into a gallery or contract.

hmmm here is a thought.
We have a gallery which sells on consignment, we are also available for 'vanity' exhibitions.

However, we also have artists we have identified for representation - early in their careers. We invest heavily in marketing these artists and their artwork.

This is why they are on representational contracts, we make an educated guess on their work and potential and as with any investment there must be an economic return.

The simple reality is: for every one artist who is unwilling to consider being represented by our gallery - there 1000's more desperately seeking such an arrangement.

7/17/2012 11:28:00 PM  

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