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28 Must-Have Provisions for Your Artist-Gallery Agreement

April 10, 2020 Art Law

Many artists and galleries think that oral agreements are enough to protect them. However, it is always a good idea to have an extensive written agreement in case things don’t turn out the way you anticipated. That’s why both parties should include these 30 provisions in any agreement.

  1. Contracting Parties: Make sure you indicate what happens in the event of the artist’s death. Do their heirs become bound by the agreement? Generally, this type of agreement expires at the death of the artist.
  2. Limited (exclusive) agency: This portion of the contract simply establishes the principal/agent relationship between the dealer and the artist. However, it is crucial because it also sets forth a fiduciary responsibility of the gallery with the artist, which protects the artist should anything happen later which is adverse to them.
  3. Duration: This is fairly straightforward, but the duration should always be clear and obvious. Usually galleries want to retain an artist through at least two exhibitions of their work.
  4. Scope and Description of Work: The work being consigned should be described as specifically as it can be. This means listing the media of all works as well.
  5. Territory of consignment: If the gallery is located in a specific territory and the artist wishes to have a different consignment somewhere else, this should be specified.
  6. Selling prices: Again, this is pretty straightforward. However, there should also be an allowance for a periodic review of the prices should the artist’s reputation or the condition of the art market change. Additionally, the issue of discounts should be addressed. Usually galleries prefer to give discounts to museums, architects, interior designers, etc. The agreement should specify who will be getting a discount and what the discount will be.
  7. Gallery Commission: How much will the gallery be receiving upon the sale of the artwork? These usually average between 33% and 50%,
  8. Payments to Artist: An artist is generally paid by the gallery on either a monthly or quarterly basis, but this should be specified in the agreement.
  9. Crating and Shipping: Who is going to cover the cost of this?
  10. Storage: Who is responsible for paying the storage fees?
  11. Insurance: No law expressly requires an art gallery to maintain insurance. The artist should require it in their agreement though.
  12. Framing: If applicable, the contract should address who will be responsible for this and who will pay the costs.
  13. Promotion: The parties may want to specify the degree of marketing activity and promotion expected of the gallery in connection with exhibitions of the artist’s work.
  14. Artistic control: The artist may want to indicate the amount of control he or she has in connection with the inclusion of his or her works in group exhibitions and in other exhibitions.
  15. Gallery Exhibitions: The agreement should specify how many solo and group exhibitions that the gallery is required to hold.
  16. Sales Tax: This is not applicable in Oregon but may be applicable in other states.
  17. Damage to or Loss or Deterioration of Consigned Works: Some states make this an issue of absolute liability, but artists and galleries should check and make sure to address this.
  18. Reproduction Rights: The agreement may address copyright notice. After all, this will protect the artist from an infringer’s defense of innocent infringement. The artist may affix a copyright on the painting or on the back of a painting.
  19. Loans and Displays: The artist may want some provision as to whether or not the purchaser should make the artwork available to a museum for display.
  20. Warranties of and Indemnification by the Artist: The gallery may want the artist to warrant that the works are original creations and that they do not impinge on any personal or property rights of third parties.
  21. Warranties of and Indemnification by the Dealer: The artist may want the dealer to indicate that they will only operate within the scope of their agreement and not make any false representations about the artist’s work.
  22. Artist’s Right of Accounting: It is within the artist’s interest to designate the frequency with which he will be entitled to a full accounting of money paid and money due from the gallery.
  23. Billing and Terms of Sale: If sales on an installment basis seem likely, the agreement may address this.
  24. Status of consigned artwork and sales proceeds: The agreement may indicate that ownership of the work is vested in the artist, pending sale.
  25. Artist’s retention of works: The artist may reserve the right to retain such works as the artist shall determine.
  26. Arbitration: If a reasonable arbitration agreement can be agreed to by the parties, the parties may wish to include this in their agreement.
  27. Assignment: The artist may want to clarify that the dealer may not assign their rights and responsibilities to a third party.
  28. Termination: The agreement should have a clause stating the circumstances under which the agreement can be terminated.

As you can see, agreements are complicated and should cover all bases. Need one? Contact Crescendo Legal today to get your agreement!