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I was heartened to read Lori Woodward’s excellent articles on gallery contracts. In the past, business between artists and galleries has been conducted solely on a handshake, which can clearly be detrimental to the artists with less leverage than the gallery. I have tried to set forth in this article some of the problems and solutions that I and my clients have encountered. I am only addressing sales through galleries, not any other method.
I had a wealthy, well known client who decided to go with a gallery on the recommendation of one person. A thirty second Google search revealed that the gallery owners were under criminal investigation.
Please check out galleries that you are considering as much as possible. Check the Internet, the local Chamber of Commerce, Better Business Bureau, and the Department of Consumer Affairs to see if there have been any complaints about the gallery. There are major limitations to all of these but it is worth looking.
You should be able to find out if it has any building or fire code violations from the municipality where it is located. Ask the gallery if they have property and theft insurance.
If they are a corporation, check to see if there incorporation with the state is up to date.
See if there are liens against the gallery; that indicates unpaid bills or artists; you should be able to find how to obtain this information on the state’s web site. Lawsuits are public information.
Please don’t do any legal transaction without a lawyer. Please. You wouldn’t take out your own appendix (I hope).
The best recommendation there is for a lawyer is from another lawyer. Ask every lawyer you know - don’t worry if you don’t know any art lawyers; we tend to all know each other and are happy to refer clients to someone who practices in a different specialty.
Your state or local bar association or local law school may have a lawyers’ referral service. Social networking sites are a great place to look. You likely don’t need to be in the same location as you lawyer since so much business is conducted online, including through your web site. Qualified art lawyers will not only be listed under “art law” but “media law”, “entertainment law”, “commercial”, “commercial transactions” and “intellectual property”.
Law schools all have clinics in particular areas of the law. You are in luck if one near you has an art or media law clinic. They are usually low or no cost, so you may have to qualify financially. While it might sound a little unnerving to have a law student represent you, remember that they are well supervised by professors. There is probably going to be a waiting list.
There may be private pro bono art clinics where you are. These vary enormously in quality and it is not easy to find out how good they are. Call them and ask how much training the volunteer lawyers get. If it is only a few hours, that is not necessarily bad if the lawyer's regular practice is in an area related to art law (lawyers don’t always overlap the areas of their practice with their pro bono work). There is likely to be a waiting list. Ask other artists if they used a private pro bono clinic you are considering.
Before you retain an attorney, you may ask where they are admitted to practice, how long they have been practicing, and how many gallery or other art related transactions they have handled. Do not ask if you can speak to one of their clients. That is covered by attorney client privilege. Sometimes a client will give their lawyer permission to use them as a reference so it is acceptable to ask “Have any of your clients given you permission to have them talk to prospective clients?” If the lawyer says no, ask the next question. Do you ask a surgeon if you can talk to her other appendectomy patients? No, you don’t.
The bad economy has hit artist’s sales and likewise it has hit law firms. Many lawyers will be willing to work with you on their fee but you will have to put money down before she starts work, e.g. a retainer fee. It is bad business to not take money upfront, whether you are a plumber, a baker or a lawyer. Do you really want a lawyer who doesn’t take proper care of her own business? You will sign a retainer agreement.
So now you have a gallery (congratulations!), a lawyer (I hope) and now the next step is the contract. The three cardinal rules of law are - put it in writing, put it in writing, put it in writing.
There are two things you want to protect – your art and your money. If you don’t have a lawyer (please get one), ask other artists to see if they will let you see what gallery contracts they have. Write down what you want in a contract. To be enforceable, a contract needs to set forth the parties, what each party has to do and a start and end date that can be determined. “Until the work is sold” is valid but you really should try to get a certain number of months or years.
There should be definite time by which the gallery has to pay you. It can be once a month, a certain period of time after they received a check from the buyer and the check clears, just as long there is a set time to pay. Make the gallery realize that you are serious – you want to have the contractual right to collect interest on late payments and have the gallery pay all costs you incur if you have to take further legal steps to collect your money.
If a contract says “exclusive”, it means just that. You can’t show anywhere else. Exclusivity is reasonable if it is limited to (1) a set length of time which is not necessarily the same as the length of the contract, (2) a geographic area or particular markets and venues or (3) combination of these. The gallery does not want to be undercut by auctions or plein air events in the same geographic area.
If the gallery has more than one location, you may be able to negotiate that you are only exclusive in certain areas. While having a gallery that knows you in another city has its advantages, it does not automatically mean they can sell you in a different city or country. Try to get an option to show in their other galleries if you are happy with the first gallery.
You will be responsible for your art’s safety and insurance while delivering it to the gallery. Ideally you want the gallery to represent (promise that something is true at the time the contract is entered into) and warrant (promise that something will remain true throughout the term of the contract) that they are in compliance with all building and fire codes and have a commercially reasonable amount of property insurance. You don’t want the gallery walls to fall down or the pipes burst with your art in it. Or have the city close it down; at best, the gallery is then going to be fixing the violations rather than selling your art. At worst, the gallery is going out of business.
Whether you want to have the right to see the insurance certificates – I hope your contract contains representations and warranties from the gallery that they have it – depends on what you perceive is your leverage with the gallery.
What happens if you are less than thrilled with what the gallery will agree to in a contract? Put a reasonable time limitation on the contract. One year is good if you are unsure about the gallery.
I would love to hear about artist’s experiences with gallery contracts, insurance, and other legal problems. Has anyone had the unfortunate experience of damage to their art in a gallery or the gallery going out of business?
Editor's Note: This article contains general information only and is not legal advice. It does not create an attorney-client relationship and should not be relied on for any particular legal situation.
Janet Steinman is a prominent New York City attorney who represents clients in the arts and other fields. Learn more about her at: