In RIGHTS the Kunstenbond, union for artists and everyone who works in the cultural and creative sector, takes a close look at a legal topic that is essential to the artist's professional practice. This edition takes you back into the world of liability, but from a different perspective than two editions ago: what happens if your work is damaged? Lawyer Jet Hootsmans explains.
For each text in the rechtReeKs series, the Arts Union chooses an appropriate image made by one of its member artists that has no relation to the issues in the article. This time: Yvonne Dröge Wendel, Black Ball, Toulon 2014
When it comes to damaged works of art, I am no longer surprised by anything. A dinner party in a gallery that gets out of hand and ends with a dance against a ceramic work, a woolen artwork in a museum that is slowly eaten by moths, a festival attendee who jumps off an art installation causing it to collapse - I've seen it happen. And what about the transport company that tries with all its might to squeeze a work of art into a crate that is too small, the truck driver who fails to properly secure a work of art and takes too sharp a turn, or the carefully stored installation that is discarded by a diligent cleaner? Art survives wars and the ravages of time, but an ordinary day with its attendant human clumsiness can be pretty tricky.
Basically, these are all situations where you as the creator are not responsible for the damage yourself. After all, the actions (or omissions) of someone else are the cause here: something accidentally breaks, not enough care was taken, or an agreement is not kept.
If you look at it all this way, it also seems reasonable that the other person should pay for the damage. Take the transporter who had not properly secured the artwork. The artist was in no way involved in that. The damage that was caused as a result was therefore justly and almost effortlessly compensated.
Art survives wars and the ravages of time
In other cases, this can be trickier. Consider the situation where the other person has excluded liability in the contract. To some extent, this is allowed.
I take the risk here of repeating myself. Or is it the power of repetition? Either way, again, it is important to be careful about which agreements you agree to. There is a tendency to quickly sign a contract with the idea that everything will be fine. The reality is that in case of damage, you can end up empty-handed afterwards. Especially for the self-employed, this can have major consequences.
Be critical when it comes to liability. Make sure that you do not agree to arrangements in which the client excludes any liability or limits it to an unreasonably low amount, especially if it is disproportionate to the risk that you as an artist face. What is a reasonable amount in one situation may prove unreasonable in another.
Again, it is important to carefully consider which agreements you agree to
In any case, it is not permissible to contractually exclude liability for damage caused by intentional or deliberate recklessness. In other words, damages that did not result from a mistake, but were inflicted knowingly or with full awareness of the consequences. You can always recover these.
If you are unsure about what you are signing, take the time to read the contract carefully. Don't hesitate to seek advice. It is often possible to modify or negotiate terms. Better prevention than cure may sound cliché, but there is definitely a grain of truth in it. And yes, it is also a cliché but I gladly take that for granted.
The devil is in the details.
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