Artist and Gallery Agreements
ARTIST AND GALLERY AGREEMENTS: Another in our series of legal resources for creative people about.
- Are all Artist and Gallery Agreements the same?
- How should an artist’s relationship with a gallery be defined?
- Should I grant one gallery the right to represent all the different kinds of work I create?
- Should the agreement specify the exhibitions the gallery is to arrange?
- What’s the usual term of an agreement?
- Who owns the copyright in the work if it is sold?
- What should my obligations to the gallery be?
- What rights should the gallery have?
- Who decides what prices should be given to the works?
- What will I have to pay the gallery?
- When will I get paid?
- Is it my responsibility to insure the work?
The information provided on this blog has been made possible by the funding received by from the New Zealand Law Foundation.
|This Fact Sheet is not legal advice. This information is intended to provide a general outline of the relevant legal issues and further professional advice should be sought before any action is taken in relation to the information contained in this Fact Sheet.|
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Are all Artist and Gallery Agreements the same?
Few relationships in the art world are as important as the relationship between an artist and their gallery. Unfortunately, there is often much misunderstanding over the general obligations of either party outside of the artist’s basic role in creating artwork and the gallery’s role in selling the artwork. Following on from this there is often a lot of uncertainty over just what should be included in the legal agreement that documents the relationship between the artist and their gallery.
One of the first points to make is that there is no such thing as a standard artist and gallery agreement. Although there are certain key points that should always be dealt with in these agreements, as with any contract, just by changing a few details of the key terms you can effectively create an agreement having a significantly different effect. This is the reason that you really do need to pay attention to the detail in these types of agreements and make sure you get any such agreement reviewed by a lawyer who understands what to look for.
How should an artist’s relationship with a gallery be defined?
One of the first issues that should be made clear in an artist and gallery agreement is what is the nature of the relationship in question? For instance, are your arrangements in respect of a one off exhibition or is there going to be some kind of ongoing relationship? If there is going to be some kind of ongoing relationship how is it envisaged that this will work?
If as an artist a gallery is going to represent you on an ongoing basis, to what extent does this affect your ability to work with other galleries? For example, will the gallery have the exclusive right to represent you in a certain geographic region (e.g. your home town) only leaving you free to seek relationships with other galleries outside of this geographic region?
Should I grant one gallery the right to represent all the different kinds of work I create?
One of the most crucially important issues to clearly deal with in an artist and gallery agreement is exactly which work which will be represented by the gallery. If an artist only works in one medium then this may not be an issue. However, if an artist is say a painter and a sculptor, or even is only currently representing themselves commercially as a painter but has plans to expand the sculpture work they do in a more commercial direction, then it should be clarified if the gallery will represent all work from the artist or only one of these mediums. This is an issue as some galleries may be better placed and have more of a reputation in terms of representing one medium rather than another.
Should the agreement specify the exhibitions the gallery is to arrange?
The basis on which a gallery is to exhibit your works should clearly defined in the artist and gallery agreement. For instance is the gallery to arrange specific exhibitions of your work a certain number of times a year or will certain of your works just be generally exhibited throughout the year in the gallery. If there are to be specific exhibitions of your works wherever possible the timing of these should be agreed as well as how any costs associated with staging of such exhibitions are to be dealt with.
What’s the usual term of an agreement?
Another important issue which should be clearly dealt with in any artist and gallery agreement is just how long the relationship with the gallery will last. For instance does the artist and gallery agreement run for a set period of time or is it ongoing, subject to either party giving the other a certain amount of notice that they wish the arrangement to end.
There are also a variety of special events that could have an influence on the term. For example, your arrangement with the gallery (but not your right to be paid or your rights in your work) should come to an end if the gallery is placed in liquidation or ceases to trade. As an artist you may also want to provide for termination of the agreement in the event that the gallery moves out of the town or region it is currently operating in.
As well as a clearly specified term and the provision for the occurrence of special events, there are also certain other situations in which the artist and gallery agreement should come to an end. For instance where one party has breached a term of the agreement and this breach is not put right when such is requested by the non-breaching party.
Who owns the copyright in the work if it is sold?
You will remain the owner of the copyright in each work sold, and the gallery should inform purchasers that you are the owner of the copyright in the work. Any dealings in relation to the copyright in a particular work should be made directly between you and the purchaser.
If you would like to find out more about copyright in visual art please refer to our Fact Sheets on ‘Copyright for Visual Artists and Photographers’ and ‘Moral Rights for Visual Artists and Photographers’.
What should my obligations to the gallery be?
What exactly an artist’s obligations to a gallery are should also be clearly defined in an artist and gallery agreement. For instance, it should be provided that an artist must submit to a gallery an up to date biography of their
background, previous achievements and any general information about their work and style, so that the gallery can be sure they can appropriately represent an artist and their work to the gallery’s customers. The number of the artist’s works available for sale that a gallery is expecting the artist to make available to them from time to time should also be specified.
What rights should the gallery have?
You should also decide to what extent the gallery is entitled to reproduce images of the works, for example as photographs, and publish them in catalogues and advertising or promotional material. As the copyright owner, the gallery will need a licence from you to do this, which can be set out in the artist and gallery agreement.
Who decides what prices should be given to the works?
It is always a good idea to establish in your artist and gallery agreement the prices at which your works will be sold for or have some mechanism by which it will be agreed between yourself and the gallery how any future works will be priced. This serves two purposes. Firstly, it can ensure that a gallery is not under pricing your work and, secondly, it can ensure that your work is not being overpriced such that you are unlikely to sell it. Although there should be some certainty in the contract on this issue, arriving at these prices may perhaps be a matter of some negotiation with the gallery. After all as a good gallery will know the general market for your type of work and also what their specific customers are prepared to pay, their advice should always be listened to.
Although it always pays to have prices clearly provided for, in certain situations you may be prepared to give the gallery scope to negotiate the price with a perspective buyer on your behalf. After all you may regard a sale at a slightly reduced price as being better than no sale at all. However, any price ranges that the gallery can negotiate within should be clearly defined. You may also want the ability to approve any movement in price below a certain level.
If you are happy in any instance for the gallery to take payment for your work in instalments or for works to be held for prospective buyers, then once again these terms should be clearly laid out in the agreement. It may in fact be that you simply want to be consulted and to have the ability to decide on a case by case basis in these instances. However, make sure your agreement with the gallery clearly reflects any such arrangements along these lines.
What will I have to pay the gallery?
The gallery will typically deduct its commission from any sale price prior to returning the remaining money to you. The exact amount of the gallery’s commission should consequently be clearly provided for in the agreement. If
there are other costs that you have agreed the gallery may incur on your behalf, then the gallery may want to have these deducted from any income which comes in before such income is paid to you. In such cases it is once again very important that the terms on which these other amounts can be deducted is made clear.
When will I get paid?
This is something that is generally up to you and the gallery to decide between yourselves. It may be a matter of the gallery informing you that a sale has been made and payment will be made to you upon you providing the gallery with an appropriate invoice for the final amount. Alternatively, a gallery may prefer to settle all of its accounts at the end of each calendar month. There are many variations on these approaches but whatever you finally agree with the gallery, it should be clearly provided for in your artist and gallery agreement. This is especially important as failure by the gallery to pay you should be regarded as a material breach of your artist and gallery agreement entitling you to terminate the agreement, on a certain period of notice, unless this breach is remedied.
Is it my responsibility to insure the work?
The responsibility for insuring your work should also be clearly defined in your artist and gallery agreement. There are many different instances where damage to or even entire destruction of your works may occur and in each instance it is possible that a different party be it you, the gallery or any purchaser of your work, will be responsible for insuring the works. Consequently it is vital that an artist and gallery agreement makes it clear who is responsible for adequately insuring your work in each instance.
If you would like to find out more about insurance issues please refer to our Fact Sheet on ‘Insurance for Visual Artists and Photographers’.
Written by entertainment lawyer David McLaughlin.