Should l have a contract with every gallery that l work with?
Typically, yes. There are exceptions. Some galleries take pride in having such good artist relations that they do not use a written contract. Do not offend these gallery owners by insisting on a contract. Tactfully ask them for the names of a few artists they represent with whom you can speak. After carefully checking their references, as long as you get a good response from the artists with whom you speak; feel free to proceed in the relationship. It’s actually a pretty safe bet. If a gallery operates on the basis of a verbal agreement, and has ongoing representation of well-known, significant artists, they must be taking pretty good care of them.
Legal leverage is only one of the reasons to have a contract. Just as importantly, it spells out the terms of the working relationship to prevent misunderstanding and augmenting the memories of the concerned parties. It is much more typical for problems to occur as a result of miscommunication than malice.
What are the points that should be covered in a contract between an artist and a gallery? Should l have them sign my contract or should l sign theirs? What if there’s something in there that l don’t like or that doesn’t work for me?
o Terms, meaning division of the retail value of the work. Typically 50/50. Some non-profits offer 55/45, or 60/40 - in favor of the artist. Take it. Some galleries will ask for more than 50%. Don't give it to them. Essential.
o Statement of consignment. This states that the work has been consigned by the artist to the gallery. The artist owns the work until it sells, and the gallery is responsible to the artist for the work until it sells or is returned. Essential.
o Artist ownership of copyright of art work. This states that the artist owns the copyrights to the work under discussion by virtue of having created it. This protects the gallery from unknowingly representing or promoting work that has been plagiarized. Optional.
o Inventory list. Number of pieces, retail price, title, description and size. Optional.
o Period of contract. Typically one year. This gives both the artist and the gallery a committed time period to justify mutual investment in the working relationship. It also gives an escape valve for either party to decide that the relationship is not working. Essential.
o Length of exhibition. Specifies length of show, duration to which artist is committed to leaving work in gallery. Extensions may be agreed to upon mutual consent. Essential.
o Required date of receipt of artwork by gallery. This ensures that the artist will get the work to the gallery in time for the exhibition, in which the gallery has made a substantial investment. This is one of the most common problems that galleries have with artists. Be professional. Plan your work for a show far enough in advance to allow for problems with new work, such as shooting images of work before it goes out, and packing it properly. Essential.
o Payment schedule. The rare gallery will pay for the sale of a piece immediately. More typically, payment will be 30-45 days from date of sale. Be sure that the contract specifies the mutually agreed payment schedule. Essential.
o Artist determines selling price of consignment work. This is the only situation in which it is typical for the artist to control the retail price on work in a gallery. It is usual for the artist to set the retail price on work consigned to a gallery. Specific reference to this arrangement in the contract is Optional.
o Discount schedule. Many galleries would like to have the ability to offer a discount on work to assist in closing sales. 10% is common in the area of contemporary glass art. Agree or disagree and so state in the contract. Any discount over what is in the contract comes out of the revenue earmarked for the gallery. Essential.
o Shipping. Artist is responsible for getting the work safely to the gallery. Gallery is responsible for returning or forwarding the work, at the end of the exhibition or contract period. Return insured shipping is at Gallery expense. Gallery to pay Artist for breakage in return shipping, even if insurance does not honor the claim. This typically would be due to poor packing. Some contracts will state that the artist is responsible for shipping both ways. Cross it out and change it. Essential.
o Gallery is responsible for loss or damage of work while in its possession. There is no such thing as 'normal wear and tear' on artwork. Just as you would never send out a piece with a crack, chip or scratch, neither should you accept one in return. The gallery is responsible for your work while in its care. Period. Do not work with anyone who does not accept this basic responsibility. Essential.
o Notification period needed prior to return of work. You may have agreed to leave work with a gallery for an extended period of time. You may have found a buyer elsewhere, and need the gallery to send the work to the buyer. Give them a week or two, depending on their situation, to get it sent out. Be as considerate of them as you want them to be of you. Optional.
o Exclusivity terms and area. This may be as simple as defining a geographic area or as complex as requiring annual sales volume. Optional. Go here for a complete discussion of exclusivity issues.
o Fee for commission. Commissions for special pieces often come to an artist through a representing gallery. The gallery should receive payment for this service.
-- Simple commission - If the commission is for a piece very similar to a piece on display in the gallery, in a different color, for example gallery receives the full 50%.
-- Complex commission - If the commission requires meetings or telephone calls directly between artist and client, development of a model, design time - gallery receives a 10% finder's fee, or other agreed percentage. In the second case, the complex commission, the gallery was not required to display, maintain or be responsible for the work. Sale of the piece was actually consummated by the artist through the development and design process. Optional.
o Artist to supply promotional materials and images. These are elements that the gallery needs in order to fulfill its commitments to the artist. Failure to provide these in a timely fashion severely handicaps the entire endeavor. Essential.
o Specific expenses gallery will assume: Announcements, mailing expenses, advertising, and reception expenses. Optional.
Although all the terms of a contract are technically negotiable, find a reasonable norm that works for you, and only question those items that fall outside it. If you have a problem with some aspect of the contract, call the gallery owner and talk to him or her about it. After making a verbal agreement, cross out the objectionable item, write in the new one, initial and date it, in ink.
If the gallery owner will not agree to the change, you'll need to decide if that item is actually a make or break issue for you. Be polite, whatever you decide. Explain courteously what hardship it causes you and thank them for their interest in your work. Don't burn any bridges. There may be a change in your circumstances or theirs, in the future. Your paths will probably cross again.
Generally, if you are approaching a gallery to represent you, they hold the advantage in the negotiation. If they contact you in an effort to obtain the right to represent your work, you have the advantage.
Most galleries have their own contract, and would rather use their own than the artist's. Read it thoroughly. It should not be so complex as to be difficult to understand, but you might want to have your attorney review the first several contracts you deal with. After a little practice, the key points will jump right out at you, enabling you to deal with a new contract quickly and as a matter of course. Keep your contracts together in a file or a notebook for easy reference.
Being clear about the terms of a contract in the beginning does not necessarily imply that one party or the other is trying to get the most for themselves. A contract is, in an abbreviated form, a business plan. It protects each party from failure due to lack of follow-through on the part of their partner. It clarifies the terms of a working relationship, so that each party is aware of his or her duties and obligations. Upon fulfilling them, the relationship should succeed.
This FAQ was excerpted from the chapter on Working With Galleries from Milon Townsend's new book entitled Making & Marketing Better Artwork. It is available here.
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