What every creative entrepreneur should know before entering a contract.
Being knowledgeable about contracts not only will protect you and your art but will show your colleagues that you are a professional ready to build respectful and fruitful relationships. This article is meant to act as an introduction to the terms of a contract most tailored to a specific deal or relationship being commemorated by a contract.
The purpose of a contract is two-fold. It is used to (1) memorialize all the expectations and responsibilities of the parties involved, and (2) to minimize any potential for litigation should any issues arise between the parties. A contract accomplishes both purposes through specific and thoughtful language. In the context of Artists, this occurs by ensuring that the Artist and whoever they are dealing with are clear about what the relationship will entail.
For example, when an Artist enters into a Gallery Representation Agreement, answers to the following questions will help to establish why you are entering into the agreement.
Do the Artist and Gallery share the same vision regarding the Artist’s career?
What are your expectations regarding your work being featured in an exhibition(s) or art fair(s)?
Do you trust a specific dealer who works for the Gallery that you want the representation tied to?
These high-arching generalizations provide what is called often referred to as the “recitals” or “preamble” and provide who the parties are, why they are establishing a relationship and what each hope to get out of it.
Next, come the Material Terms of an agreement, a nice way to think of this is that the Material Terms are the heart of the agreement and work in concert to reach the goals of each party. In general the main categories of Materials Terms for all contracts generally include:
Payment
Scope of Work — Performance and the Parties Obligations
Term/Deadlines — How long the relationship will last and incremental deadline expectations
Representations and Warranties — Putting in writing that each party can deliver everything they say they do and establishing what happens if things do not go as planned
To continue with our example, the next series of questions illustrate the topics established under the Material Terms. Though not exhaustive, answers to these questions help to narrow the relationship and provide for the Material Terms of the Representation.
Will the Gallery have an exclusive agency over your entire body of work, or will the Gallery only have a right to a limited works or geographic territory?
How often will your work be exhibited? Where, when, and for what duration of time?
What will be your involvement in the curation and marketing of the Artwork being represented by the Gallery?
What assurances will the Gallery provide regarding the safekeeping and transportation of your Artwork?
Who will set the price of the Artwork?
Will the Gallery hold the Artwork and any sale proceeds in trust for you?
What is the Gallery’s commission structure and payment remittance schedule?
How long is the term of the Representation, including any sunset clauses? Do you have a right to terminate with notice?
Some particularly important topics and terms to be considered as a creative professional may include:
Material Costs
Art Fair Expectations
International Sales, Conversion Costs, Customs Cost
Licensing Parameters
Liability Protection for inherently dangerous works
Creative Control / Final Approvals
Copyright, Moral Rights and VARA
Satisfaction Upon Delivery
Termination Reasons and ensuing liabilities including but are not limited to a failed provenance assessment or missing a deadline due to reasons out of your control.
Each contract you enter throughout your Artistic career will include some or all of these topics and considerations. It is imperative for the parties involved to have a clear understanding of their individual obligations and responsibilities for the relationship to endure and grow in a positive direction. Contact us today for any contract needs.