Gallery Representation Contracts

(http://edwardwinkleman.blogspot.com)

Bambino and I were interviewed recently by a charming and very smart young writing duo who are working on a how-to book for artists that's being published by a major publishing house soon-ish. We'll give you plenty of info when it's closer to the time that you can get a copy for yourself. It does sound as if it will be very helpful.

One of the questions that came up during the interview, though, dealt with representation contracts, and I made some statements about them that I only later realized were perhaps only my opinion and not representative of how artists and other galleries feel. So I thought I'd solicit other folks' feelings about the use of such documents.

We don't use representation contracts in our gallery. We have an open and ongoing discussion about what representation means, and we do use consignment forms in most circumstances, but the notion that an artist is legally bound to remain with the gallery if that's not their desire strikes me as counterproductive to what we're trying to do.

Mind you, I've talked with lawyers and even attended panel discussions where all kinds of horror stories were told warning of the dire consequences of not having contracts, but I've concluded that most of those situations were only horror stories because of the amount of money involved, and, well, our gallery is still young enough that we're not seeing the sorts of prices that necessitate such contracts yet (I can hear the lawyers gasping from here).

The long and short of my own aversion to such contracts has been the sense that they're kind of like pre-nuptial agreements. Good perhaps if you're talking small private fortunes, but perhaps a pointless symbol of mistrust if you're not. Also, knowing that no amount of discussing what representation means before one signs a contract can anticipate all the possible reasons one might want a change down the road, and, well, I have enough aggravation in running a small business without adding resentment like that to the mix.

Still, I realized that even though I feel this strongly about representation contracts and have discussed them here before, I've never actually sat down to draft one. What should/do they contain? I found a list of what they might contain on the New York Foundation for the Arts website. They recommend:

Formal contracts should be signed prior to the start of your representation. Here are all of the possible points that need to be covered. Not all areas may be relevant to your situation. Customize a contract that suits your individual needs.

• Parties Involved in the Contract – (the gallery and you).
• Duration of the Contract – (fixed term, contingent on sales, options to extend the term of duration).
• Scope of the Contract – (media covered, past and future work, gallery’s right to visit the studio, commissions, exclusivity, territory, studio sales, exchanges, charitable gifts).
• Shipping – (who pays to/from the gallery, carriers, crating).
• Storage – (location, access by artist).
• Insurance – (what is protected, in-transit, on-site).
• Framing – (who pays for framing).
• Photographs – (who pays, amount required [color and b+w], ownership of negatives and transparencies, controls of films).
• Artistic Control – (permission for book/magazine reproduction, inclusion in gallery group exhibits, inclusion in other exhibits, artist’s veto power over purchasers).
• Gallery Exhibitions – (dates, work to be shown, control over installation, advertising, catalog, opening, announcements/mailings).
• Reproduction Rights – (control prior to sale of work, retention on transfer or sale of work, copyrights).
• Damage or Deterioration – (choice of restorer, expense/compensation to artist, treatment for partial/total loss).
• Protection on the Market – (right of gallery to sell at auctions, protection of works sold at auction).
• Selling Prices – (should address who bought your work, the selling price, initial scale, periodic review, permission discounts, negotiation of commissioned works, right to rent vs. sell).
• Billing and Terms of Sale – (extended payment, credit risk, allocation of monies as received, division of interest changes, qualified installment sale for tax purposes, exchanges/trading up, returns).
• Compensation of the Gallery – (right to purchase for its own account).
• Income from other Sales – (rentals, lectures, prizes/awards, reproduction rights).
• Accounting/Payment – (how often, right to inspect financial records, currency to be used).
• Advances/Guarantees – (time of payment, amounts and intervals, applications to sales).
• Miscellaneous – (confidentiality of artist’s personal mailing list, resale agreements with purchasers, rights of gallery to use artist’s name and image for promotional purposes).
• General Provisions – (representations and warranties, applicable laws, arbitration).

Although I fully agree with all but one of those areas being discussed in full before the gallery and artist agree to representation, I have never had a situation where I thought a contract would have led to a better outcome for either the gallery or the artist when an issue came up. I can see the day when that might change though. The item on the list that makes me uncomfortable is the second one: Duration of the Contract.

OK, so that's my take on them. What's yours? Do you want a written contract with your artists/gallery? Do you have any anecdotes that would change my mind about them? What does it say to artists if a gallery insists on a 5-year contract, for example. Is that attractive (because it demonstrates their commitment to your career) or off-putting (because it suggests you might be locked into a bad situation)?  

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