Contracts, Contracts

Magenta Hollyhocks, 2007, Oil on Panel, 8x10

Well, yesterday I mentioned contracts, and so I thought I'd talk about my experiences with them a bit further. Without being specific, of course.

One of the benefits of working in some different environments before setting out to work as a full time artist is that I learned a bit about business. Not a lot, but enough to get by without getting ripped off. And I knew from doing some basic research (thank god for the internet) that having a contract was really important if I would be sending my work off to a gallery.

I thought I would feel awkward bringing up the topic, but I quickly found out that I didn't and that if I didn't ask for a contract, reputable galleries or non-profits would be asking me to sign one anyway. A good and fair contract helps to protect both parties and if the gallery won't offer one, I suggest running the other way.

But what is a good and fair? I will mention the points that I look for and that are usually standard.

1. Geographical Designation. This can seem constricting, but it really works to my benefit as well, to limit the area in which I can show my work. There is enough competition, why compete with myself too? And being loyal to one gallery is important to me. I am not at the level where I have an exclusive dealer, so most of my contracts require a 50 mile radius, town or city limits and one is exclusive to the whole state. I look at each circumstance and decide if they work for me, and usually they do, thus far anyway.

2. Commission. The going rate in most commercial galleries is 50-50, 60-40 (favoring the gallery in some cities like NYC), and 30-70 or so (favoring the artists) in non profit spaces. If you have some clout these can be negotiable, I suppose, but I am not there yet. I can say though that I would probably not work with a gallery if the terms were 60-40 on their side. I won't say they shouldn't get that but I would prefer to not get less than 50%. Also standard are discounts to collectors, museums and designers. Usually the discount is 10% to be split evenly between the artist and gallery. Additional discounts are absorbed by the gallery. I also have an agreement with a few of my galleries that I have the right to accept or decline higher discounts.

3. Payment terms. Standard is payment to be made to the artist within thirty days. Exceptions, and they should be noted in the contract, are payment terms granted to the buyer. I am lucky enough to have several galleries that seemingly mail a check to me the moment that they get paid and they have my undying loyalty. I learned from an office job I had once that if payment is not made within 45 days, it becomes less likely that it will be made with each week that passes thereafter. So if I don't receive a payment within thirty days, I make a "gentle reminder call", and if it goes past 45-60 days I get downright pesky. I have only had to do that once though, thankfully.

4. Shipping. Generally the artist pays for shipping and related expenses to the gallery, the gallery pays for shipping back to the artist. UNLESS the artist requests work to be returned in which case there may be a fee required to be paid to the gallery, in addition to the shipping expenses. Also, if the artist terminates the relationship, the return shipping is then the responsibility of the artist in that case. Follow? I was once offered a contract by a gallery whose contract stated that the artist was responsible for shipping to and FROM the gallery. This was non-negotiable on their part so I turned down their offer.

5. Insurance. This was another non-negotiable point in the previously mentioned contract. They didn't insure the work in their possession! Occasionally this may be the case in a nonprofit, and I might agree to it in that case, if there are other benefits to showing there, but there is not a chance in hell that I will ship my work off to a commercial gallery that will not take responsibility for it while in their possession. Very unprofessional in my opinion!

6. Pricing. Most of my contracts have an item about keeping the retail prices the same in all markets. I am fine with that although I can see how, if my prices go up, I will price myself out of some of the smaller galleries that I work with. But it doesn't look good to buyers if they notice that work is priced lower in some galleries than others. And believe me, there are people who notice those things and will ask about it!

7. Termination. There should be a reasonable termination clause, equal to both parties. Mine range anywhere from immediately to 120 days. Also, the contract should have an expiration date, at which time the artist (or gallery) can choose not to sign another.

8. Copyright. The artist should own the title to each piece until it is purchased, at which time it transfers to the owner. The gallery usually has the right to reproduce the image for PR purposes and there is usually some sort of copyright statement. I have to admit here that I am a bit foggy on the whole copyright issue, but all of my contracts have the same statement regarding it so that seems fine to me.

These are the main points usually covered in a standard artist/gallery contract. As I said, some negotiation is possible and in fact if the gallery won't make any reasonable concessions (like in the example I gave above) then it's my guess that there will not be a very good working relationship. And some additional points in a contract would be periodic inventories, signed consignment lists and designation of expenses for exhibitions (it should be the gallery's responsibility, unless you are comfortable with a different agreement).

I have contracts with all of my galleries, except one. I should follow my own advice and request a contract, but I have to say that my instincts are very positive in that case, however if that changes, I will immediately request one. I pay close attention to my instincts, frankly. I have turned down several exhibition opportunities and representation offers over the last few years, based on "hinky" feelings. Often those feelings those been confirmed by the contract and/or discussion with other artists.

I think it's also very important to not sell yourself short. A few years ago, I was desperate to get things going and had to struggle to accept only respectable situations. I can't tell you how painful and disappointing it was to turn down that bad contract offer. But when I did, I almost immediately received two good offers. I totally believe in good and bad karma by the way. That gallery has closed and I am still showing.

The reaction to the request for a contract is important to gauge as well. I worked with a gallery once who didn't have a formal contract, but when I suggested that I would feel more comfortable with one, the director was kind enough to write up a letter (on the gallery's letterhead) noting the gallery's terms. They have been a dream to work with and I am not surprised by that at all.

At first I thought that maybe I should have a lawyer look at the contracts first, but I realized that most of the contracts I was being offered at the gallery level I was at, weren't very complicated. I have casually discussed them with a friend who is a lawyer and he said the same thing. But if there are stronger exclusivity points or other more detailed terms I would suggest seeing a lawyer.

This has gotten pretty long! Please feel free to add your comments or experiences regarding comments. I would have known little about this stuff if I hadn't heard about other artist's experiences.