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Article: Mutual Need, Mutual Respect

Fionn Meade

As becomes clear upon learning more about contracts within the context of the art world, agreements in the visual arts have their own distinct and peculiar tradition. Unlike Leo Castelli’s Medici-like practice of giving monthly stipends to such artists as Jasper Johns and Robert Rauschenberg or Dia Center founder Heiner Friedrich's doling out substantial quarterly sums to his artists, the expectant sculptor Donald Judd infamously among them, very few of today's artists are likely to enter into such agreements at any point in their life. Indeed, unlike Castelli's famous indifference for business details—he often quipped that he couldn't be bothered to chase after clients that didn't want to simply come to his gallery—today's elite contemporary artists (those individuals whose works regularly sell for tens and even hundreds of thousands of dollars on up) inevitably have substantial legal representation as individuals. 

But what about the vast majority of artists selling their work through individual agreements made directly with dealers (without legal counsel)? Contrary to what is sometimes thought, these agreements are often quite malleable and knowingly agreed upon to be so by both parties in order that the relationships have room to evolve without drawn out legal angling.

An interesting example of the constantly shifting nature of contractual agreements in the art world exists in the recent rise in importance of Brooklyn galleries in the New York art scene. Their increased leverage has led to more artists being represented by both a gallery in the more well-known Chelsea establishment and one in the more indie and hip Brooklyn scene. Enacting a kind of different strokes for different folks approach, galleries will agree that an artist can be presented to a different clientele and their work promoted through a different network of contacts to the mutual benefit of both galleries despite their being in the same city and ostensibly same market. In other words, the art market, mirroring general shifts in capitalism and new markets, is an increasingly hybrid and rhizomatic enterprise—sometimes within the same city.

The dealer/artist arrangement is a relationship that Gil Edelson, lead counsel and Vice President of the Art Dealers Association of America (ADAA), notes "exists out of mutual need," and that he further describes, pointedly, as "necessarily based on trust." For instance, as mentioned, many galleries do not have written agreements with their artists. It is not only a common arrangement but considered standard by many to simply have a verbal agreement regarding representation, prospective sales and the financial breakdown of sales (though industry standard is most often 50% for each side as regards primary representation). Why is this viewed as beneficial to both sides? And how do both sides know and learn to trust each other? For instance, how does the artist know where the dealer stands on offering discounts, and likewise, how does the dealer prevent the artist from selling out of their studio? The short answer is, without a contract, there's little recourse for either. And here's where there exist a lot of different opinions and advice, and, artists interested in following up further should consult the resources listed below for more detailed discussions of legal contracts, including such topics as letters of agreement, consignment agreements, commissions, and the red flag 'pay-to-exhibit' agreement among others. 

However, as regards the more general issue of how to enter into an agreement with a healthy modicum of trust involved, Edelson, for one, suggests research. Above all else, he recommends that an artist learn as much about a prospective dealer as is tactfully possible before entering into an agreement for representation. Just as a dealer will often request a studio visit or ask to look at an artist’s portfolio when considering representing an individual artist (and commonly ask around about an artist’s reputation among peers), an artist should be prepared to do a little asking themselves before entering into an agreement. So how to go about doing that? Well, the answer is with tact and awareness that it's the artist's job to ask questions and interpret others' responses without calling upon someone to gossip directly about business practices or economic transactions. In other words, ask other artists, buyers, and gallery-goers familiar with a particular venue about their impressions, aesthetically and in practical terms (and often the two are combined or shed light on the other) and conduct your own informal survey. Edelson also underscores such important considerations as finding out what you can about whether a dealer is known to have a good client list, whether they promote their artists well, whether they have good relationships with museums and curators, and whether they have a good rapport with other dealers, as key factors in deciding to consider when entering into an agreement.  

Contrary to some notions about art dealers, Edelson notes that most galleries are closer to "mom and pop operations" than any sort of corporate conglomerate, and rely on small staffs with the dealer herself often working as bookkeeper, accountant, salesperson and so on. In other words, keeping a lawyer on retainer is unrealistic for most galleries. And so, again, lengthy or involved contracts are not a preferred way of doing business. That said, Washington Lawyers for the Arts (WLA) recommends that artists ask for a simple contract/letter of agreement with their respective dealer that succinctly states what both parties can expect regarding issues around damage to artwork, payment, publicity, exhibition rotation, etcetera (see below for more information regarding WLA and their services). WLA further points out that dealers are required by Washington State law to pay artists within 30 days of sale. Still another contract option is a consignment agreement that puts down on paper which works of art are explicitly considered within the artist/dealer agreement, allowing for an ongoing accurate inventory and simple form of checks and balances. Again, there are options and differing points of view regarding contracts within the artist/dealer paradigm and it's the job of both parties to directly address their preferred way of doing business rather than work under an assumed practice.

What is clear, however, is that the business of dealing art, not unlike many other businesses, does not have a widely agreed upon best practices guide to refer to. It is, and will likely always be, a constantly shifting enterprise that demands a lot of individuals, both artists and dealers, and relies on the oldest of agreements—mutual respect and a certain amount of trust.

For more information on WLA and their ongoing efforts to help prevent legal problems for artists, including the Arts Legal Clinic which is offered twice each month and is open to artists and arts organizations of all disciplines, go to WLA's website or call 206/328-7053.

For in-depth articles on business issues related to contracts and exhibiting, go to http://www.nyfa.org/ and look up their "Business of Art" content in the "For Artists" area of their site.

For a decent article on what practical questions artists might ask themselves when looking for a gallery, go to www.artadvice.com/blog/artadvice-archive/.