Collaborating with a gallery

  • RIGHTS

In rechtReeKs, the Kunstenbond, union for artists and everyone who works in the cultural and creative sector, takes a legal topic that is essential to the artist's professional practice. Lawyer Jet Hootsmans into agreements between artists and galleries for this edition.

Image: Irene van de Mheen, Poste restante
For each column in the rechtReeKs series, the Arts Union chooses an appropriate image created by one of its member artists that has no relation to the issues in the article.

 

As a lawyer, you prefer to have agreements written down in minute detail. That this is not always realistic I know. Also - and perhaps especially - in the world of visual art. 

Take the collaboration between visual artists and galleries. This involves a lot of verbal agreements. Often But sometimes things go wrong, and as an artist you can suffer the consequences. For example, if there is a misunderstanding, if agreements are not kept or if something else goes wrong. Was the percentage agreed with the gallery with or without the discount that the gallery owner gave to the artist? the client has given? Can you just switch to another gallery? And who is responsible for damages that occurred to your work during the opening? 

Take the collaboration between visual artists and galleries. This involves a lot of verbal agreements

In all such cases, written agreements offer more guidance. Both the artist and the gallery can refer back to the agreement and thereby hold the other party accountable. This can save a lot of tedious discussions, time and money care. 

After this plea for written agreements, the perhaps somewhat unexpected to now suddenly state that there is no per se have to be a written agreement to have a specific agreement. Nevertheless, it is. In law, the actual course of events is decisive. In other words, the manner of cooperation determines what agreement exists between the parties. 

Back to the collaboration artist and gallery owner. Legally, this relationship is quite complex because, depending on the working method, different types of agreements may apply. Often there will be a fairly non-binding mediation agreement. The gallery mediates in the sale of works of art by the artist to the customer. But if the cooperation continues for some time, an agency agreement may also exist. 

the manner of cooperation determines what agreement exists between the parties

The subdistrict court determined this, among other things, in the Andriesse - Van Meene case. Photographer Van Meene had terminated her cooperation with gallery owner Andriesse after three years. Andriesse brought suit. He argued that Van Meene had a notice period of four months should have applied and was vindicated. The judge assumed an agency agreement existed because the relationship had a lasting character. The claim of over 34 thousand euros was awarded. 

One characteristic of an agency agreement is that it cannot be terminated just like that. If nothing has been agreed upon, as in the case of Van Meene, then a notice period of at least four months must be observed. In addition, the gallery are entitled to a so-called goodwill fee. If you do not comply with the notice period then you may be liable for substantial damages.

The tricky thing is that a relationship that was first "just" about mediation goes, over time can become an agency agreement subject to much stricter rules. Therefore, proceed carefully when considering changing galleries. 

If you do not comply with the notice period then you may be liable for substantial damages

A common situation in both forms of cooperation is consignment. This is also a point of concern. In the case of consignment you remain the owner of the works that a gallery offers for sale. As such, you no longer have any control over them. For this reason alone, it is important to put the agreements in writing. This does not have to be in a bulky contract. In a world where there is a lot of verbal appointments is worked on, it may be nicer to settle this with a more approachable e-mail. Or, if necessary, with a message via WhatsApp. 

If you email the gallery a list of the artworks issued, it is clear who owns which works. Also for yourself. You can also mention the selling price, commission and any agreements on discounts. While you are at it, the liability for any damages is also useful to include. Please send a reply with 

an agreement (or simply asking "Is this right?"), and if the answer is positive, that's absolutely fine. In that case, you've created agreement, and thus an agreement after all - without deviating too much from the usual. 

In short: clearly formulated agreements in advance can prevent disagreements and significantly improve your legal position. Even where agency is concerned. That one email may turn out to be worth gold later and that's pretty easy money anyway. 

More Articles

ADVERTISEMENTS