+ I'm ready to make Art my full time job, what do I need to know?

The three most basic points to consider when starting out are (1) how will I sell my work (2) do I want to sign on with a gallery, art advisor or manager to assist and (3) when I sell, license, or enter into a representation agreement what rights do I retain in my work?

(1) If you are selling directly to a collector, you will want to enter into a sales agreement and include a certificate of authenticity. A sales agreement will establish, at minimum, the artist's name, purchaser's name, date, cost, and a description of the artwork. It may also include a reservation of artist's rights to reproductions, use of artwork at future exhibitions, and restoration rights.

(2) Entering into a represenation agreement can be advantageous to get your name out there and provide credibility across certain collector circles. Often galleries will take 40-50% of any sale proceeds. A key determination of whether representaiton is worth it is finding a partner in your representation understands your long-term career goals and vision and is willing to negotiate to help you reach said goals.

(3) Retaining certain rights in any works you sell, license, or that are subject to a represenation agreement is paramount to your long-term success. Outside of copyright, it is important for you to retain rights like usage which would allow you to use it in your future museum retrospective.

All of this to say, to ensure the longevity of your legacy as an artist it is smart to plan from the beginning by entering into contracts with all your patrons and representation.

+ What to look for when being represented by a gallery?

When signing on with a gallery you will likely be presented with a Gallery Consignment or Representation Agreement. The key terms to pay attention to are the (1) policy for holding your artwork and any sales proceeds in trust, (2) commission fee structure, (3) scope, and (4) rights the artist retains.

(1) All artwork and any proceeds from the sale of any artworks subject to the agreement (see (3) below) should be held in trust for the artist. What that means is that the gallery cannot spend any proceeds alloted to you or artworks for any other purpose than what is provided in the contract and that any creditors of the gallery cannot take your work as payment. Further, by holding the art and any proceeds in trust on your behalf the gallery becomes a fiduciary and is held to a higher standard of care.

(2) The gallery gets paid in one of two ways: either by paying the artist a flat fee for each sale and retaining the balance (e.g.: every work sold the Artist gets $1000) or by retaining a certain percentage of each sale (e.g.: the gallery and artist split any sale proceeds 50/50).

(3) The scope of the representation will consider how long the representation last, is it limited to a certain geographic area (e.g.: New York), how many exhibitions and/or art fairs will the artist's work be featured in, what works will the gallery have access to, is it exclusive or non-exclusive, etc...

(4) The artist may want to include that they reserve all copyrights in the works upon a sale brokered by the gallery and a notice is included in any promotional reproductions printed or online. Further, the artist can retain creative control on how any works are exhibited.

+ Collaborations with other artists--who owns what?

Sorry this one is the worst lawyer answer ever--it depends. But in this instance it truly does. Was the project a true collaboration, did an artist contribute some component as a work-for-hire or subcontractor, or is a specific component of the art licensed for use in the final piece?

If it is a true collaboration, the artwork can be owned jointly by all contributing artists or each artist can indvidually own their specific contribution(s).

If it is a work-for-hire, sub-contractor, or licensing situation then generally the primary artist will retain all the rights in the final piece.

However, each of these scenarios have a lot of "it depend" considerations when determining ownership, thus making a collaboration agreement or licensing agreement imperative for a clear understanding of each artist's ownership rights.

+ What do I need to know about licensing my work?

(1) Scope, (2) payment structure, (3) artistic control, (4) copyright infringement, and (5) products libaility insurance.

(1) The key to a licensing agreement is first defining the scope of what is licensed, how it can be used, for what purpose, where geographically it can be sold, distribution requirements and limitations, exclusivity, and for how long does the license last.

(2) In terms of payment, there are two standard forms. A flat fee or royalty structuring. However, there also may be some combination of both.

(3) As an artist, quality is part of your reputation and you can retain the right to approve any final designs to protect the integrity of your art.

(4) When putting your art onto a commericial product you run the risk of others duping the product. The best way to protect yourself is to register the work(s) being licensed with the copyright office and work with the manufacturer to include a clause in the agreement that requires the manufacturer to deal with any infringements on an expedited basis.

(5) Similarly to infringement concerns, if things go wrong with the product and your name is on it, you open yourself up to a prodcuts liability claim. The manufacturer may add you as an additionally insured party on its policy to protect from any potential claims.

+ What do I need to consider when I have a public art commission?

First, public art is a great opportunity to showcase your work on a large scale. However, depending on whether it is a public or private entity engaging you there are some varying considerations.

For commissions made by a public entity (think state and local agencies, public construction projects, or other tax payer funded spaces) a main distinguishing factor is that public (tax payer) interest must be protected. This will make any agreement more fulsome and will also force an artist to consider terms generally outside the scope of a private commission including but not limited to errors and ommissions insurance, specific warranties and indemnifications, specific budget considerations, delay considerations, pre-approval of sub-contractors, and copyright and licensing considerations.

For commissions made by a private developer much of the additional factors are the same, however, they often provide a Master Service Agreement ("MSA") to the artist. The MSA is often provided to any contrators working on the project and will often need to be tailored to an artist's specific needs.