In the Studio: Working with Galleries Mamta Gholap

Appears in the Mar/Apr 2021 issue of Pottery Making Illustrated.

As an artist, you might want to display your artwork at a gallery for an exhibition or on a consignment basis. Few artists sign agreements with the exhibiting gallery, relying on a bond of mutual trust, involving risks. Before entering into a formal business affiliation with a gallery, you should discuss terms—conditions, considerations, and commitments. The artist and the gallerist (owner, manager, and/or curator) need to mutually emphasize that this is a business relationship, which can be regulated by different types of contracts aimed at the sale and protection of the artwork.

Possessing something in writing and signed by both parties is more beneficial than oral agreements. If any questions arise prior to, during, or following the exhibition or a sale of art, you’ll have an official document spelling out the ground rules in detail. With each gallery you exhibit personal artwork in, you’re entering into a business relationship, and you certainly don’t want to end up in an argument or disagreement if problems arise.

Contracts and Agreements

Before exhibiting your work in a gallery, make yourself familiar with the various types of contracts and agreements that exist between gallerist and artist:

• Sale On Consignment: Essentially, used in collaborations between an artist and a gallery. The gallery receives artwork consigned by the artist. The gallery commits to sell or return the artwork within a set time. The artist maintains the creation until the final sale. The eventual revenue is distributed according to a percentage accepted between the two parties.
• Exclusive Contract: This contract involves a maximum of 5 years. It is the commitment of the artist to process all work and sales through the gallery, earning a monthly income, if so agreed.
• Purchase Agreement: This version involves the purchase of an artist’s creation by the gallery for exclusive ownership and most often resale.

Keep in mind that even without a written contract, obligations, rights, and responsibilities between the artist and the gallery must still be maintained. Establishing a legally binding contract is a safeguard for both parties. Consulting a lawyer or a specialized counselor who can advise you of the best contractual solution for your situation is better than risking disputes or the possibility of a lawsuit.

Provisions Artists Must Add to Contracts

• Insurance: No law expressly requires an art gallery to maintain insurance—the artist should require it in their agreement though. Could your art gallery handle the cost of a fire breaking out in the building or recover stolen pieces?
• Advertisement: The parties may want to specify the degree of marketing activity and publicity expected of the gallery in connection with exhibitions of the artist’s work.
• Artist Command: The artist may want to designate the amount of control they have in association with the artwork in the exhibition and the exhibition itself.
• Gallery Shows: The agreement should specify how many solo and group exhibitions the gallery will be holding that will include the artist’s work.
• Negotiating Parties: Indicate in the agreement what happens in the event of the artist’s death. Usually, this type of contract expires at the death of the artist.
• Limited Agency: This portion of the contract establishes the principal/agent relationship between the gallery and the artist. It is crucial because it also sets forth the fiduciary responsibility of the gallery with the artist and protects the artist if anything happens later that is unpropitious to them.
• Crating and Shipping: Who will be responsible for the cost of packing (including materials) and shipping the artwork to and from the gallery?
• Storage: What are the storage fees? Who is bearing the cost? Does the gallery provide storage space? Pricing of these storage facilities ranges by the foot from as little as $5 per square foot to as much as $15 per square foot per month.
• Sales Tax: Determine who pays the sales tax upon the sale of artwork. Taxes are applicable per state.
• Duration: The duration should always be clear and obvious. Usually, galleries want to retain an artist through at least two exhibitions of their work.
• Scope and Description: The work being consigned should be described as accurately as possible.
• Territory of Consignment: If the gallery is located in a specific territory and the artist prefers to have a different consignment location, this should be specified.
• Sale Prices: Allowance for an intermittent review of the prices should the artist’s fame or the situation of the art market change. Additionally, the issuance of the discounts should be discussed. The agreement should specify the terms and conditions of the discounts.
• Gallery Commission: How much will the gallery receive upon the sale of the artwork? Every gallery is different, but most galleries retain somewhere around 40–50% commission from sales.
• Payments to Artist: Determine the regularity of payment by the gallery, most often on a monthly or quarterly basis.
• Right of Accounting: Artists should indicate the frequency with which they will be authorized to a full accounting of money paid and money due from the gallery.
• Terms of Sale: Whether it be installment-basis sale or full-and-final sale, it should be addressed in the agreement. The agreement may indicate that ownership of the work is vested in the artist.
• Retention of Artworks: The artist may possess the right to retain their artwork.
• Authorization: The artist may want to clarify that the gallerist may not assign their rights and responsibilities to a third party.
• Termination: The agreement should have a clause stating the circumstances under which the agreement can be terminated.
• Damage, Loss, or Deterioration of Consigned Works: Depending upon the region where your artwork is exhibited, some states make this a matter of total liability, but artists and gallerists should make certain to address damage or loss of work in the written agreement.
• Copyrights: The agreement should address the copyrights of the artwork. It will shield the artist from an infringer’s defense of an innocent violation, like someone duplicating your design without giving you credit. The artist should append copyright on each work for sale.
• Displays: The artist supplies the artwork to the gallery, and the gallery supplies space for the artwork. The artist may want some prerequisite as to whether or not the buyer should make the artwork available to a museum for display.
• Warranties by the Artist: The gallery may request that the artist assure each artwork is original.
• Warranties by the Gallery: The artist may want the gallerist to indicate that they will only act within the scope of the agreement and won’t make false representations about the artist’s work.

Remember, before signing the contract, review each line thoroughly and talk to your attorney. Trust is good, but guarding yourself is better!

Note: The information provided here is not aimed to constitute legal advice. Readers should contact a lawyer to obtain advice concerning any particular legal matter or contractual agreement.

Mamta Gholap earned her MBA in finance and is passionate about handbuilding with clay.