What Every Artist Should Know
Artists fresh to the art marketplace are often so eager and so pleased to find a gallery to exhibit their work that they gladly hand over paintings they have spent months preparing along with an inventory list, not even requesting a receipt. All they see before them are the walls of the gallery where shortly their works will hang and at last they will have recognition.
One subject sadly missing from art schools is art law and the right and necessity of an artist to be protected by a contract. Good galleries, if they really believe in the artist will themselves want a contract because they will want exclusivity over the artist for a period of time so that they can grow the artist, and they want the right to extend that contract if they have met their obligations to the artist so they can derive benefit from his jumping prices.
This is the way it works in most of the world regarding artist/dealer or gallery relationships. Before an artist hands over work he is presented with a contract and advised to take independent legal advice before signing it.
The contract states the obligations of the gallery to artist as to the number of exhibitions they will hold yearly, the amount of works they will aim to sell, their obligation to return unsold works ( usually after 90 days of exhibition close), fairs they will take artists to , press they will chase, information they will publish, how they will represent the artist’s public face and presence on the internet. The gallery states to mount not only solo shows but also a group exhibtion.
The artists agrees he will not sell any works except through the gallery, he will refer all enquiries back to them, that he accepts they take a commission if loaning him out to another gallery, the number of works to be delivered for each show and a set date before the show when the works will arrive.
It is always the artists obligation to get the work to the gallery ready to hang and it is the gallery’s obligation to bear the costs of return.
This contract prevents any other gallery trying to entice the artist while the gallery is growing them.
A good gallery or dealer works hard to raise the artists profile and prices and push him to the secondary market.
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A gallery protects the artist, cares about its reputation, pays on time, sometimes even advances money to the artist – they nurture the artist. They protect the artist’s copyright and will take action if the copyright is breached. International law and the Berne Convention to which just about every country is a signatory states that the copyright resides with the artist for life. No multiples can be made of his work without his permission and a royalty fee. Unfortunately I had the experience in St Petersburg of observing that a Contemporary Art Museum, marketing its artists to the west, forced them to surrender copyright before taking them on. In the museum’s shop were multiples of the artist’s work mounted on canvas, given a special name. To me they were fakes.
The contract also states the division of fees between artist and dealer, when artist must be paid, and if there is any any shared responsibility for exhibition invitations or materials (sometimes this does occur in young galleries).
If another gallery tries to lure an artist away it is called interference with contract and there are heavy penalties for the encroaching gallery.
I have found the above to be the system whereby art is traded world wide. It is not the case in third world or undeveloped countries.
I came to South Africa recently and found that the above contractual relationship is rarely concluded. A prominent artist Malcolm Payne told me he no longer exhibits in galleries after the experience of having his paintings unreturned for nine months until he drove a thousand miles to pick them up and load them into a car. Most recently I heard from Peter Clark, whose prices have soared in the last two years, that a gallery in Sandton Square Johannesburg has held his works since 2011 and does not return his phone calls. He had never heard about the kind of contract I discuss above and said he doubted whether most artists, especially emerging ones had ever heard of the concept.
What makes a gallery holding artworks even more alarming is the artist has no way of knowing if the works have been sold. Even more disturbing is that galleries often go to banks for loans based on their inventory and so of course they will not release paintings- it affects their bank loan.
How many artists can afford legal fees to enforce their contracts? Few. When I ran a pop up gallery in London my contracts stated that disputes has to be settled by arbitration or mediation under the English law as regards legal dispute. This made for fast track inexpensive settlement. I do not know if the system provides for that in South Africa.
I have written a great deal on my blog about Nazi looting, about the fight of families to regain stolen property. I see no difference in these stories as between those of artists deprived of their property and sole source of income. I intend to help Peter Clark get back his paintings and have already found a lawyer to do the work pro bono. But I hope the information in this blog will pass around between artists and they will protect themselves. And I hope too that young grass root galleries that are vital to the growth of the art market will also draft contracts to protect themselves. It is a two way game – artists must appreciate their protection and in return respect the gallery that promotes them. That is what art law is about because otherwise you have a jealous cut throat environment where everyone, including the clients who has fallen in love with a painting suffers. Unfortunately he walks out the door and knowing nothing about aesthetics, or that one piece of art by the same artist differs greatly from the next, is told by a rival gallery he is overpaying. Perhaps he then buys a much cheaper work – but it will never have the same magic and the dealer with the acute eye and knowledge will never become a guide on what should be the adventure of collecting.
Art is not as simple as it may seem .
What Every Artist Should Know
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