My recent post for artists who want to secure art gallery representation brings me to another important question. How should you proceed when a gallery is interested in selling your artwork? The gallery / artist relationship can sometimes be a fairly loose business, based on little more than a handshake deal. I think it’s wise to come up with an art gallery contract. Consider the following story:
Once upon a time in a Colorado resort town, an established art gallery began to display the works of a young painter. The gallery director had been in the business for years and represented a number of artists. Some had decades of experience and established reputations.
This new artist had little experience in this kind of environment, having been represented by only one other gallery. But he eagerly provided several framed paintings for display after little more than a handshake agreement with the director.
Months went by. The artist lived a few hours away, so he called the gallery periodically to check up on things. More months passed. The gallery staff stopped answering his calls. They stopped returning voicemails. Then suddenly, the gallery phone number was no longer in service.
The artist scrambled, not quite knowing what to do next. He called one of the other gallery artists who immediately drove to visit the gallery in person. The gallery was closed and locked. The artist put in a call to the owner of the gallery who had put the director in charge and trusted her to handle all the gallery business. The owner didn’t know the gallery had been closed. She came and unlocked the doors, but it was too late. A few of the paintings were there inside, but most had gone missing. The police were called. The gallery director was found and questioned. Her lawyer got involved and complicated the search for answers.
I am, as you may have guessed, the artist in this story. It took place in 2001. To this day I don’t know what happened to five of my paintings from that gallery. Many other artists lost paintings too. Some lost dozens. Had they been sold? Given away? Traded? Stolen?
The worst part is that this kind of story isn’t all that uncommon. Talk to a few artists who have worked with galleries and you’ll likely hear similar stories.
So it’s wise to come up with an art gallery contract — a business agreement — that both you and the gallery director can discuss and sign. It may not save you from the type of story above, but it can help you to identify red flags that might appear during talks with a prospective gallery. It also gives you a chance to talk about issues that will likely come up in the course of business and decide how they will be handled.
Click to download my sample art gallery contract in PDF form. You can then copy and paste the text into your favorite word processor to input your specific details. I based my art gallery contract on a template offered by Scott Burdick and Susan Lyon.
Remember that as an artist, your relationship with any gallery is a partnership. Both you and the gallery should be responsible to make the relationship work. Do what you can to protect yourself and your artwork with an art gallery contract.
I have been showing and selling for 30 yrs. The only galleries I have had trouble with are ones that had contracts. The 3 galleries I show with now are all hand shake agreements, if they don’t trust you, you shouldn’t trust them. I have been with these galleries 2, 10,and 20 yrs. I wouldn’t show with a gallery that needed a contract, my personal take.
Thanks for your opinion, Stephen. I’m glad you’ve had good luck with your galleries. The advice I think we should glean from your comment is to make sure there is trust between artist and gallery. Which is a great point. It really doesn’t matter how long you’ve been showing with galleries or whether they use contracts or not. I’m sure there are success stories and horror stories both ways. My point with this article is just to encourage artists to think about terms that are important to them so that both parties can discuss and form a mutual agreement.
I would counter that a written contract, executed to memorialize and agreement and the details of that agreement needs to be in place. People don’t need to be suspicious of a document developed with respect and in the spirit of protection for both parties. A written agreement doesn’t mean the parties don’t trust each other. On the contrary, they’re usually written out of respect for the relationship.
These agreements protect both, particularly in the event of unforeseen circumstances They also give a legal remedy should the agreement be violated. Handshake agreements are perilous to both parties and I have avoided them. Only once was there an issue between me and a client, and our agreement protected me financially.
That said, in any case, investigating the gallery owner’s reputation with other artists is a good idea, especially if the gallery is new to you or you’re just starting out.
Thanks for your comment, Tracy. Well said.
The California Consignment of Fine Art Act, Civil Code section 1738 et. seq., provides that a gallery owner is a “constructive trustee” of art placed with them for consignment sale. As a trustee they are wholly responsible for loss or damage, and they must pay the artist’s share of the sale proceeds to the artist before they pay themselves. A breach of an agreement by the gallery owner is non-dischargeable in Bankruptcy as it constitutes a “Breach of Trust”. Potential defenses by a gallery owner who is sued for lost art might be that the artist consigned the art to a corporation or other business entity and not the owner personally, that the art was lent to another gallery or broker who is now responsible, that the artist agreed to give the art to the owner as a form of “bonus” for other sales, or that advertising or other costs were partially the responsibility of the artist. Be sure a written agreement covers those issues.
Great advice, Mike. I know you have some good experience behind you.
Thank you, Dan, for sharing this information. I, too, have had trouble with a gallery going out of business. Fortunately, an artist friend (also at the gallery) called me to say, “Get your art out of the gallery, now!” Other artists did not fare so well.
Another time, a distant, inland gallery did a promotion where 5 local, coastal artists participated. The gallery owner was “excited” to extend the show. We did not get our paintings returned or the revenue from sales for over 6 months as the owner was unreachable or the gallery locked during business hours. Definitely a Breach of Trust.
Thank yous to Tracy and Michael.
It can be a tough business out there, Linda. We have to do our best to keep track of what’s going on, especially when we don’t live near the galleries who represent us. Thanks for your comment.
David W. Mayer
Dan, Great column! I think California and Montana are perhaps the only 2 state with strict laws to protect the artists. Other artists may have more information. I have been “stiffed” twice by galleries in New Mexico, but managed to recover the money both times. Unfortunately, a contract is only paper without the local and legal resources to back it up.
Thanks for your insight, David. I was also “stiffed” by a gallery in New Mexico but was able to eventually get the money they owed me. You’re right that a contract may not offer adequate protection in itself without other resources. But it at least prompts both parties to discuss things up front.
John Hendry, College Station, Texas
Great article, Dan! I appreciate this conscientious approach, to avoid misunderstanding and to protect the interests of both parties. Oh for the old days when a handshake was all that was needed! Those days are long gone, and contracts are very helpful in the marketplace. Yet, many people will prove trustworthy, and will honor the contract. 😊
I appreciate your comment, John. I’m thankful for the trustworthy gallery owners I’ve worked with!
Jean Claude Vanderfield
Thanks for the great info! I have been dealing with two amazing galleries and still I agree that having a written agreement in place is best. Even with the best of friends in business agreements, some times a simple misunderstanding can lead to stress, loss, or disappointment for one or both parties, unintended. Having it in writing helps everyone see up front what each other is expecting out of the mutual agreement and helps keep everyone on the same page.
I have a slightly different situation. I approached a local upscale Mexican restaurant and asked if they would exhibit my original oil painting (22″ X 28″) of a Day of the Dead Catrina. The restaurant owner is excited by the concept. I have gone by several times to show him the art in process. I am now ready to frame and have the piece hung. Since this is not a gallery situation, how can I adapt the Gallery Contract to protect both myself and the restaurant owner?
I would just read through my sample contract and adapt it as you see fit. You may be able to remove quite a bit depending on what you’ve discussed with the restaurant owner. Just try to think of issues that may arise and then talk it over with the owner and see if he has any other thoughts. If nothing else, it just helps to talk things over together. Then keep a record of what was decided so that if issues do arise, you can remember.
Thank you for this! I’ve just used it to create and agreement for my online gallery. Appreciate it!
Great points! As a gallerist, artists should know that our insurance policies also dictate that we must have a written contract as well as a detailed inventory from each artist in the event that there is a claim. Therefore, if a gallerist insists on a written contract, it doesn’t mean that they don’t trust the artist…it could just mean that they are looking out for the artist in the event that damage to their art occurs. Also, as a side note, the contract protects the artist in the event the gallerist dies or files for bankruptcy. The contract would specify that the art was not owned by the gallery and therefore is not an asset in a probate or liquidation suit.
I struggled with contracts when I first opened my gallery as it felt very formal and I was friends with the first four artists that I represented. However, six months in when we were renewing our insurance policy, I was informed that in order to prove that the art was considered “other people’s property” to qualify under what they called our “stretch policy”, we needed a written contract and inventory list signed by both the artist and the gallerist. Better to be safe than sorry!
You sound like a great gallerist, making sure to spell things out in a contract to benefit both you and the artists you represent. Thanks for commenting!