Artist, Gallery and Dealer Contracts,
Agreements and Relationships
Q: I've been talking with a local gallery that wants to give me a show in about six to nine months. It's all good so far, but I don't really know them that well. What kinds of questions should I ask? Should we have a contract? Should I use a standard contract I find online? What if the gallery doesn't use contracts? Would an informal agreement be enough? What should be covered in a contract or agreement?
A: First the disclaimer. I am not an attorney and I do not offer legal advice. If you need legal advice, contact an attorney. Now let's get down to business....
Certain basic terms, obligations, considerations, and conditions should always be discussed and agreed upon by you and a gallery before entering into any type of formal business relationship. Having something in writing and signed by both parties is far better than verbal agreements or worse yet, winging it and seeing what happens. When you have something in writing, if anyone questions any aspect of the agreement at any future point, you'll have an actual document that clearly delineates the ground rules. You're entering into a business relationship, a partnership of sorts, and you certainly don't want to end up in a he said/she said argument or disagreement if problems arise. That's never good.
As for cookie-cutter template artist contract or agreements like you might find online where you basically fill in the blanks, the problem with those is specific details of your pending relationship or arrangement may not be adequately covered or even mentioned mentioned at all. Opting for a template quick-fix can not only give you a false sense of security but can also end up being nothing but trouble. Instead, you really have to think through and evaluate each and every offer or opportunity on its own and make sure you custom-craft any documents to include all conditions unique to that situation.
An artist/gallery contract, agreement, relationship or arrangement should generally include or at least consider the following factors. Keep in mind that the following list is by no means exhaustive...
* How long will the arrangement be in effect? I other words, how long will the gallery be representing you or your art? If the relationship is new, a term of three months to a year is typical, after which time the contract can either be renegotiated, or if both parties are in total agreement, language in the contract can allow for the term can automatically renew.
* Geographic exclusivity. What local, regional, national or international regions will the representation cover? If the relationship is just starting out, allowing a gallery to exclusively represent your art over large geographical areas where no other gallery can show or sell it is not a good idea. That's relinquishing too much control too early-- before either of you have any idea how the arrangement will work out, and especially how your art will sell. Start slow, see how things go, and assuming things go reasonably well for all concerned, gradually revise or expand the geographic parameters of the agreement. For example, suggest that they exclusively represent you only within a limited geographical area-- say within a fifty-mile radius of the gallery.
* Online exclusivity. Will you be allowed to sell any art online? If so, what? These days, artists want to maintain a certain level of control and autonomy over their online activities. At the same time, a gallery needs assurances from you that they have the exclusive rights to sell certain works for certain periods of time. And you need assurances from the gallery that you can still maintain an active online profile. Depending on the nature of the relationship, the arrangement may include your being able to sell art that the gallery has no interest or investment in.
* Will the gallery be representing all of your art or specific works or bodies of work? If the relationship is new or untested, it's better that the gallery does not have control over all of your art, but rather the exclusive rights to sell only the works or body of work that they're most interested in representing or selling. That way, you can still sell work and generate income if the gallery isn't able to sell as much as they thought they could.
* Including an escape clause in any agreement or contract is also recommended. For example, if nothing sells after a certain period of time-- say six months-- or the arrangement simply isn't working out for other reasons, either party has the right to terminate the relationship by giving 30 days written notice to the other.
* Will specific works of art be consigned to the gallery? If yes, those works should be accurately fully itemized including descriptions, dimensions, medium and any other relevant details, and all this along with images of each work. The time period during which your art will be in possession of the gallery should also be specified, after which you would be free to take any or all of it back. That time period can always be renegotiated or automatically renewed if things are working out to everyone's satisfaction (or shortened via the escape clause if they're not).
* Will your relationship with the gallery have any effect on your website, social media pages, or overall online presence? If yes, what? For example, will you have to remove prices, specific images, contact information, etc. and if yes, which and for what period of time? Will certain types of posts have to change or stop during the duration of the contract? Will all inquiries have to be referred to the gallery? Etc.
* Will you be able to sell art on your own outside of the gallery? On your website, at your studio, at other galleries, or on social media pages? If yes, what art can you sell and under what conditions? Will the gallery want a commission on outside sales? If yes, what percentage? Will you be able to sell to pre-existing customers without having to pay a commission? Etc.
* If you are being given a show, how long will it last? If you know the beginning and end dates, specify either the exact dates or a date range within which the show will take place. If you know how many works of art will be in the show, include that. Be as complete and specific as possible here in order to avoid disagreements or misunderstandings later.
* How many works of art will you be required to deliver to the gallery and by what date? By what date will the show have to be hung or otherwise on display? After the show, will you be required to pick up your art from the gallery? If yes, by what date? The more specifics here, the better.
* Who will determine the look and layout of the show-- the gallery, you or both of you? Usually the gallery takes the lead on this one. Regardless, discussing the matter ahead of time is always a good idea.
* Will the show be advertised or promoted. If yes, how and where? If expenses are involved, who will be responsible and for what percentages of the total cost? Will you have to provide the gallery with your email or mailing list? Will you be able to promote the show on your own? If yes, in what ways?
* Who insures the art? This absolutely has to be discussed. Generally the gallery is responsible for the art while it is on their premises, but you have to make sure. As for while the art is in transit, the two of you will have to determine that. Supposing art is damaged in transit or while being handled? Who is responsible for it then?
* How will prices be determined? In most cases, you and the gallery discuss, agree on and then set retail prices ahead of time. Letting the gallery takes the lead here is generally recommended. They know their clientele and who typically buys what for how much.
* What is the percentage split between the artist and the gallery? The gallery and the artist usually split the full retail sale price of a work of art evenly, or in the vicinity of evenly. Avoid situations where the gallery askes you to tell them how much you want for the art. That leaves the gallery free to mark it up whatever amount they feel like marking it up above and beyond your price-- possibly leaving you with only a small percentage of retail. Fixed percentage splits are generally standard and best for starters.
* Does the gallery have the ability to reduce a retail price if a potential buyer makes an offer? If yes, what percentage can that price be reduced? Ten to twenty percent flexibility on negotiating a final selling price is reasonable under most circumstances. Determining this in advance is always better than requiring the gallery to contact you during price talks and potentially jeopardize a sale (assuming you're even there to answer the phone or text). Art is often an impulse purchase and you don't want to interrupt the flow of negotiations.
* If the gallery has permission to reduce the price, how will that reduction be split? Will the gallery subtract the entire amount from their commission, or will you split it evenly?
* How and when will you get paid? Being paid in full within thirty days of the gallery being paid for a sale is reasonable and standard under most circumstances. Leaving the payment deadlines and procedures out of a discussion or agreement is never a good idea.
* If you have any agents, consultants, referrers, or anyone else working on your behalf to promote or market your art, determine in advance what their commissions will be if they get you gallery shows or other forms of representation or exposure. For example, a commission might simply be a flat fee for making the connection, or it may be a percentage of sales over a fixed time period.
* How will the gallery keep records of sales, and should there be a question involving whether specific artworks have actually sold, how will you be able to verify that those sales have in fact taken place? Best arrangement here is for the gallery to report sales activity and accounting on a regular basis, say once every month or two, and to provide a complete accounting at the end of a contract's term, or point at which it will be renegotiated.
* Who pays incidental expenses like transport, packing, shipping, storage, travel, and so on? Will the gallery pay? Will you pay? Will costs be split? If so how? Always figure out in advance who pays how much for what, and under what conditions. And formalize it in writing.
* Who pays for framing or similar expenses involved in preparing the art for your show? Does the gallery assume all costs or do you assume some of them? Or will certain of these costs be split or deducted from sales?
* Who pays for organizing, hanging, or otherwise displaying the art? Will the gallery assume all the expenses or will they expect you to pay a certain percentage?
* Who pays for publicity, promotion, marketing, advertising, printing, postage, and anything else related to getting the word out about your art? Normally these expenses fall to the gallery. Make sure you understand everything in advance.
* Will there be an opening for the show? If yes, who pays for any expenses involved with that such as refreshments, for instance? With any incidental expenses like this, you don't want to be blindsided by requests from whoever's showing your art. All of these details should be worked out in advance.
* Should the gallery experience financial problems or close for any reason, you want to make sure all art and unpaid proceeds from any sold art are entirely yours, and that any of your art remaining at the gallery (or in facilities belonging to the gallery) will be returned to YOU AND YOU ALONE. In other words, include a clear statement in the agreement that your art and all proceeds from the sale of that art are exempted from claims by any creditors.
Be aware that not all galleries or venues offering to show your art are interested in signing contracts or agreements. Or the documents they are interested in signing do not necessarily cover everything you'd like to have covered. Unfortunately, many artists are so eager to have their art shown, they're willing to overlook shortcomings, hope for the best, and accept whatever contracts or documents they're presented with. That's fine as long as you're aware of the risks involved and of what you stand to lose if things don't work out. If you're OK with that, then fine, but if you're at all uncomfortable about moving forward, perhaps wait until next time when the terms of the arrangement are more to your liking.
(sculpture by Robert Arneson).
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