A painting is damaged during shipment. Your commission check arrives, but it’s substantially less than you expected. A buyer returns your work demanding a refund. Your sculpture collects dust in a gallery for years. A gallerist hosting your work begins representing another artist whose work looks like a replica of yours.
Do any of these scenarios sound familiar?
If they do, then you might need a refresher on the legal side of being an artist. This article reviews basic contract law, then turns to artist-specific pressure points. If you want to skip the explanation and simply want the template, click here.
According to longtime art curator, Natalie Wooten Henderson, “Understanding the business and legal elements of the art world is not intuitive. Those who are proactive about protecting their business, enjoy success and eliminate unnecessary stress.”
The Business of Selling Art
If you paint, sculpt, or create, it’s important that you understand the art market and the sellers who help place your art in the hands of buyers. Taking time to understand how gallerist, art shows, art dealers, and online platforms engage buyers will pay dividends. Likewise, knowing how art sellers make money can help.
For starters, talk to other artists and art sellers. There is nothing like being in the “know” of your trade. Proactively, you can take steps, contractually, to ensure you are made aware of relevant information. Knowing who is buying what and when, might pay off a mortgage or a year of college or pay for a well-deserved vacation. Without it, you might struggle to meet your full potential as an artist.
When you agree for someone else to sell your art, include in the contract a provision requesting financial information. A gallery, for instance, should be able to provide a list of sales, buyers, prices, and dates of work sold. The same is true for online sellers. Sure, you can observe these things and ask, but it’s better to see it in black and white – “Trust, but verify.”
What’s in an Artist Contract?
Gallerist, art shows, online vendors, and everyone else seems to have contracts. You likely have a contract as well – or a least you should. But, what is a contract? Moreover, what should be included?
According to Black’s Law Dictionary, a contract consists of “an agreement between two or more parties creating obligations,” which are legally enforceable under the law. There are three parts of every contact: a) an officer, b) an acceptance, and c) consideration. Each of these elements can be complicated, but that’s the idea. In practice, it looks like this
Pro Tip: Pay attention to the language of your contracts and the ones you sign. The devil, as they say, is in the details.
Everyone loves a handshake deal, but if it’s not reduced to writing, people tend to forget. Rarely do people set out to defraud others. More often one thing leads to another, there is a misunderstanding, then a broken promise, and a host of other unfortunately circumstances that land people in court. Because buyers and sellers often deal with high volume, they truly tend to forget exactly what was said. It’s easy to forget, nonverbal communication plays a significant role in business dealings – tones, expressions, posture, culture, and even cadence, each communicates both intended and unintended language. Most of it would be eliminated by simply writing down exactly what you have agreed to do.
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Commissions
When an artist agrees to do a commission, it’s generally great for both the artist and the collector. The details, however, can cause heartache if they are not hammered out clearly and upfront.
How much the collector or buyer pays upfront is the first bridge to cross. Should the buyer pay 20 percent down or 50 percent? Is the remaining balance due on delivery? Will the artist take payment plans? How will payment be made – check, cash, Venmo?
In the same breath as the payment details, both sides need to sketch out the subject matter, size, and scope of the project. A 20-foot sculpture requires a totally different commitment than an eight-inch bronze. No matter the medium, the size and scope should be clearly spelled out for all to see. Modification should be written as well.
Other questions like completion date, framing, who will pay shipping, are all equally important. Insurance and taxes can also be stumbling blocks, so make it all clear.
The most crucial understanding is how much and when the payment is due. You have to have a meeting of the minds on these points, so make it clear, bold, underlined, italicized, with flashing lights.
Reproductions
For artists, what is your standard reproduction rule? Do you even have one? If you don’t, think about it and be prepared to communicate the terms under which your work can be reproduced.
For sellers and gallerist, have you talked to the artist you represent about reproductions? If you have not, assume you cannot participate in reproductions. But…good business folks, know how to maneuver, so if you see an opportunity, talk to your artist and figure it out. Never engage in selling reproductions without a written agreement – a “meeting of the minds” is necessary.
Both artists and art sellers have a responsibility to make sure buyers know if they are buying a reproduction. If you sell a $30,000 painting and the buyer sees the same painting hanging in another studio, you’ll get a call from an angry customer. People who buy original art, want a one of a kind. If you sell reproductions, make it known.
Just to be safe, have a standard and write it down. Everyone is then clear on what they are selling, producing, and buying.
A note on giclées – Typically, art dealers selling giclées are clear with the artist about what is being sold. The buyer, however, should understand very well what he or she is buying. Don’t rely on pricing to communicate value, label giclées conspicuously.
As for licensing, artists should know if they are selling a license to a buyer to use their art. Again, make sure the deal is reduced to writing or else you are begging for “misinterpretations” of use.
Insurance
Most artwork needs insurance – gallery owners, artists, and buyers all know this. The trick is understanding from your insurance company who covers the art and when. Who covers in the gallery or home is clear, but who covers during transport? Who covers if a buyer requests alterations to a painting, but it does not turn out as expected?
There is nothing complicated but read the insurance agreement or ask your agent just to clarify who covers loss and when.
Shipping
Shipping is the pits. There is nothing more frustrating than relying on strangers to deliver work, undamaged, on time, to the correct location. Some artists spend many hours building massive crates and wooden shipping vessels for paintings. Others pay big bucks for packaging and shipping. Nevertheless, making peace with shipping is necessary for most artists.
In the law world, the terms of the deal matter. Let’s take a painting, for example. When you drop it off at FedEx, typically it’s packaged and ready to ship. But, what does your agreement with FedEx say? What are the terms?
If you have avoided damage to your artwork during shipping, you’re an anomaly. From your studio to the car to the shipping store to the inside of the shipping store to the shipping truck to the plane/train/ automobile and finally to the customer – who bears the cost if something goes wrong during any of those moves?
It’s essential to understand who pays and when if something is damaged. Equally as important is knowing how to make a claim.
Auctions
Art auctions link buyers with artists in powerful ways. The host, which is often a gallery or community group, generally assembles the pieces. Just like elsewhere, it’s essential for buyers, sellers, and artists to each understand the terms under which everyone agrees to participate. This includes all the regular considerations – time, place, commissions, prices, fees, insurance, and time of payment.
The one unique consideration with art auctions is taxes. Like with many art shows, sometimes the art auction operates as a non-profit which means buyers may not have to pay sales tax (of course depending on the state and other particulars). If you are a buyer or artist, check to see if you might be able to sell your work or buy work without sales tax.
Do I Really Need a Contract?
No, you cannot just mindlessly sign and toss away contracts. Well, I guess you can at your own peril. Read it, zero in on the relevant details, then stash it away in a drawer hoping you don’t have to use it. Contracts are instructions for what to do if something goes wrong – and it’s also the first thing lawyers ask for when you talk to them.
Contracts are essential. Consider these questions when customizing your specific contract:
- How long will you allow a gallery to have exclusive rights to sell your work? Six months? One year?
- Do you retain the right to request your work back at any time?
- Who is responsible for the return shipping?
- Will you agree to having your work exclusively in one gallery within X miles?
- If you post work on your website and social media accounts will you agree to include “work available through XYZ Gallery” and lead collectors to whomever is representing your work? While this may seem like minutiae, being clear in the beginning of a relationship with a third party will pay dividends in the future.
Agreements work better when they are written. A detailed contract helps most situations, but it’s not always necessary. Sometimes an email works. Remember the basics of contracts above, not all promises are contracts. Contract or not, business agreements should be written, even if it’s just as a reminder to the parties involved.
Takeaways
- Artists, gallery owners, online art dealers, art auctions, artisans, and everyone else should reduce all agreements to writing.
- Highlight payments, commissions, and all pricing. Leave no ambiguity.
- Pay special attention to the time and method of delivery.
- Don’t overlook insurance, taxes, and fees – it saves to talk about it upfront.
- Understand your insurance coverage and the coverage of those with whom you conduct business.
How Do I Get a Contract?
You can either hire an attorney or use Drafted Legal’s premade contracts that are tailored for artists.
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