Art Consignment Protection for Artists
Maybe it’s your nightmare, or maybe it’s something you haven’t thought to worry about yet. What happens if something goes wrong while your art is on consignment to a gallery or art dealer? Read about artist John A. Parks’ nearly disastrous art consignment experience below. This excerpt from the 2014 Artist’s & Graphic Designer’s Market also includes a Q&A with art author and publisher Tad Crawford. Read the complete article and Q&A in the 2014 Artist’s & Graphic Designer’s Market or on Artist’s Market Online.
Keep creating and good luck!
Protect Yourself When Consigning Artwork: A Q&A With Tad Crawford by John A. Parks
I recently received a frantic telephone call from a representative of a gallery that I’ve been working with for more than 30 years. An ugly legal dispute had broken out among the family who owns the gallery, and a legal executor for the deceased former owner was threatening to remove all works unless it could be proven that they were on consignment. I suddenly had to provide written proof of consignment agreements or lose the artworks.
For many years we had done business on a handshake; paperwork was rare or non-existent. I couldn’t believe that people with whom I had done business for so long and whom I regarded as friends could be putting me through this. Fortunately, in this case, I had somehow had enough sense to write up a consignment list for the paintings in question and asked the receptionist to sign it when I delivered the work. This turned out to be enough to recover my paintings, but I was lucky. As artists, we often give an art dealer possession of artworks and must then rely on him or her for their safekeeping, their sale at an appropriate price, and the remittance of payment—and the dealer offers no pledge as security. What then, can an artist do to protect himself or herself in such transactions? I recently spoke with Tad Crawford, an expert on the legal rights of artists, to find out.
You have written three books on legal issues that arise between artists and dealers. How did you become interested in the subject?
My interest in the subject developed when I was teaching writing and literature at the School of Visual Arts in New York City. I realized that many of the students would be running their own businesses but that no course in school prepared them for business. I developed and taught a course titled “Law and the Visual Artist.” Seeing the need for a text to accompany the course, I wrote Legal Guide for the Visual Artist.
Your book The Artist-Gallery Partnership focuses on consignment laws and agreements. What steps should artists take to protect themselves when first consigning works to a gallery? What is the biggest mistake an artist can make when consigning works?
The biggest mistake that an artist can make is simply to leave art with a gallery on a handshake. Any time art is consigned there should be a written consignment agreement that spells out all the details of the relationship between artist and gallery. This would include listing the works consigned, the prices at which the works may be sold, when the works are to be exhibited, who bears the costs of exhibitions and any other expenses, the gallery’s commission percentage, and the artist’s right to accountings.
How important is it to have a written agreement with a gallery? Does the agreement need to be drafted by a lawyer?
If the artist has legal counsel, that would be ideal, but it’s not required. However, it is very important that the agreement be written. I published Business and Legal Forms for Fine Artists in 1999 to provide artists with an educational resource, including nineteen sample forms on a CD-ROM. Memories differ, especially when interests differ and time elapses, so oral agreements make disputes more likely. Both parties should prefer the clarity and certainty provided by written agreements. Some galleries refuse to enter into written agreements, but in most cases this should be a warning sign to the artist that the relationship may be a difficult one.
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If a gallery fails to return consigned work, what kind of recourse does an artist have? Often artists feel that it is too costly—and perhaps futile—to hire a lawyer. What are the best organizations to approach for legal help?
The artist certainly has recourse for breach of contract. This is true even if there is no written agreement, but the terms of the agreement will be harder to prove. It may be expensive to hire an attorney, although often just a letter from an attorney can get results. The artist could consider suing in small claims court or, if provided for by a written agreement, starting an arbitration proceeding. If a lawyer is needed, keep in mind that the lawyer needs to have some specialized knowledge of law as it pertains to artists. Good organizations that offer pro bono legal help, such as the Volunteer Lawyers for the Arts, can be found by searching online.
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Disputes often arise between dealers and artists over damage to works being held on consignment. Is it customary to include in an initial agreement with a dealer how such disputes will be resolved?
This would certainly be a wise provision to include in the agreement. Generally, the gallery would be expected to have insurance coverage for the art, so the risk would be placed on the gallery. If the gallery doesn’t have such insurance, a negotiation could determine how damage will be handled and what amounts shall be paid either to repair the work or reimburse for its loss.
John A. Parks is an English painter who trained at the Royal College of Art. Based in New York for the last thirty years, he has exhibited widely in both the U.S. and England. His most recent exhibition at 532 Gallery in New York was hailed by New York Times critic Roberta Smith as “…a treat to discover.” Parks is on the faculty of the School of Visual Arts in New York, where he teaches drawing and painting. His work is represented in many collections including the Victoria and Albert Museum in London and the Museum of the Rhode Island School of Design. www.johnaparks.com