Matthew Deleget, Visual Artist Information Hotline
This column addresses the issue of contracts between artists, galleries
and collectors. A contract is the essential tool that informs both parties
of their responsibilities and objectives. If you and your gallery/collector
work well together, you will rarely, if ever, refer to it.
Since I am not a lawyer (I’m not even a doctor), I thought it best to
cull information from the top publications in the field dealing with the
business of art. I compiled the following highlights from the five books
listed below (see Great Publications on Contracts) in order to shed some
light on consignment agreements with galleries, formal representation
contracts with galleries, and bills of sale with collectors. Contracts
address important issues of ownership and negotiation.
Consignment Agreements with Galleries
Whenever you consign works to a gallery for an exhibition, you do not
need a formal representation contract, but you do need a consignment agreement
in writing that discusses the following 7 points:
Representation Contracts with Galleries
- Names of the specific works to be exhibited.
- Duration of the consignment.
- Payer of shipping and insurance to and from the exhibition.
- Insurance during the exhibition.
- Retail prices of the works (to be set by you).
- Your income on sales and when you will receive payment (usually within
30 days after the sale).
- Gallery’s commission on sales (all discounts given on sales should
be born by the gallery).
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
Bills of Sale with Collectors
- 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
- Income from other Sales – (rentals, lectures, prizes/awards,
- 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
An informal contract called a Bill of Sale should accompany each artwork
you sell to a collector. A Bill of Sale states your rights as an artist
and it must be signed by you and the collector. Here are the 6 points
to be covered:
- Your ownership of the copyright of the artwork.
- Your share of the royalties on the resale of artwork (in California
- Your right to photograph and reproduce the artwork for publicity purposes.
- Your right to re-acquire the work for a retrospective.
- Your right to share in any of the artwork’s rental income.
- Your right to limit the exhibition of artwork in public.
An Example of a Bill of Sale
Using the 6 points listed above, here is an example of the language you
could use in writing a Bill of Sale for collectors:
Other Points for Bills of Sale with Collectors
- The artist holds the copyright of the artwork.
- The artist must be informed of the resale or transfer of the artwork,
including the name of the new owner and the price of sale. According
to California state law, should the price be more than $1,000 over the
original price, the seller must give 10% of the amount over the original
price to the artist.
- The artist has the right to photograph the artwork, if necessary,
for publicity or reproduction purposes.
- The artist has the right to include the artwork in a retrospective
show for a maximum of 3 months.
- If the purchaser rents out the artwork, the artist must receive 25%
of rental income.
- The artwork cannot be exhibited in public without the written approval
of the artist.
Here are some other points you may also want to include in your Bill
- The artwork is original, unless otherwise indicated.
- The artwork is certified to be free of all defects due to faulty craftsmanship
or faulty materials for a period of 12 months from date of sale. If
a flaw(s) appear during this time, all repairs must be made by the artist.
Galleries, as well as private dealers, consultants, curators, and publishers,
will usually provide you with a contract. Read it before you sign it and
make sure you understand every item it covers! If you do not understand
every point, ask the gallery to put an explanation for you in writing
or consult a lawyer.
Also, whenever you mail a contract, register it at the post office with
a return-receipt so you will have a record of when it was received.
Great Publications on Contracts
The following publications discuss issues surrounding the business of
art. They are all worth adding to your library.
Art Office: 80+ Business Forms, Charts, Sample Letters, Legal Documents
& Business Plans for Fine Artists by Constance Smith and Sue Viders.
Published by ArtNetwork in 1998. Cost: $14.95. Call (530) 470-0862. Web
site: http://artmarketing.com. This valuable resource provides ready-made
forms on every subject related to the subject of arts and business. Artists
are encouraged to photocopy the forms and use them directly!
Art Marketing 101: A Handbook for the Fine Artist by Constance
Smith. Published by ArtNetwork in 1997. Cost: $24.95. Call (530) 470-0862.
Web site: http://artmarketing.com. This book covers every area related
to marketing your art: the business of art, getting ready to exhibit,
presentation know-how, marketing savvy, entering the mainstream, and publishing.
Taking the Leap: Building a Career as a Visual Artist by Cay Lang.
Published by Chronicle Books in 1998. Cost: $16.95. Call (415) 537-4230.
Web site: http://www.chronbooks.com. This great book offers insight into
creating your artist’s packet, planning a strategy when things begin to
happen, creating a command post, staging an art exhibition, making connections,
and other helpful hints.
For additional information about contracts, please contact NYFA Source at our toll-free number (800) 232-2789,
or by email: firstname.lastname@example.org.
Special Thanks to the Hotline's Consortium
A project of the New York Foundation for the Arts, the Visual Artist
Information Hotline is made possible by the generous support by the following
Consortium of organizations and individuals: Albert A. List Foundation;
The Alice Baber Art Fund; Basil H. Alkazzi; The Andy Warhol Foundation
for the Visual Arts; The Elizabeth Foundation for the Arts; Fleishhacker
Foundation; Virginia Gilder; The Joan Mitchell Foundation; The Judith
Rothschild Foundation; Lannan Foundation; Lily Auchincloss Foundation;
The Liman Foundation; The Marie Walsh Sharpe Art Foundation; National
Endowment for the Arts; The Peter Norton Family Foundation; Pew Fellowships
in the Arts; The Pollock-Krasner Foundation; and the Richard A. Florsheim