Don’t get Harriete Estel Berman started on the subject of artists having contracts with the galleries that represent their work. The San Mateo, California sculptor doesn’t converse on the subject; she proselytizes. “In no other field than art do people regularly work without a written contract,” she said. “If I agree to work with a gallery and they don’t hand me a contract, then I provide them with mine, and we go from there. If they say no to a contract, end of story. I’ll work with some other gallery.”
That may not be the end of story for every artist. The power imbalance between artists – especially younger, emerging artists who will forego standing on principle in order to have some gallery show and possibly sell their work – and their dealers often forces artists to accept otherwise unacceptable arrangements of which the absence of a written agreement is but one element. To a degree, artists can only hope that success in selling their work will provide them with greater leverage for negotiating better deals later on. Still, it is useful to have a firm idea from the start of what one’s arrangement is with a dealer and what one might negotiate for in the future, which includes putting it all in writing.
Quite a few art gallery owners will say no to contracts, for a variety of reasons. A legal document will require them to pass it by their own lawyers, which adds to cost and a sense of suspicion: If you believe I would sell your work and then not pay you we shouldn’t be working together. They view a contract in the way that a fiancé might look at a pre-nuptial agreement, as the first step toward inevitable divorce, while dealers prefer to see their relationships with artists as a marriage.
“Most of the time they just say they prefer not to work with contracts. Nothing specific, they just don’t want to deal with it,” said Los Angeles artist Eric Merrell, who noted that he has “walked away from galleries that balked at the idea of using consignment forms. This is always one of the first questions I ask a potential gallery.”
A written agreement between artist and gallery just strikes him as common sense. “If it was all verbal and I just told them the sales price when I dropped off the painting, we could both potentially remember different figures,” he said. “It’s a recipe for misunderstanding.” He added that a consignment agreement is “primarily a statement of common understanding. I know too many artists who have been taken advantage of by galleries.”
Written contracts may solve a lot of problems, but dealers frequently make sour faces whenever an artist offers one. “A lot of the relationship between the artist and the dealer is based on trust, and you can’t pin that down in a written contract,” one prominent New York City dealer said. “In fact, the written contract may imply a lack of trust.” One might say that dealers who profess to scorn contracts are disingenuous – they certainly sign contracts with banks, landlords and collectors – but the old rhetoric dies hard.
Fear of contracts is in no way peculiar to art dealers. Jason Horejs, owner of Santa Fe, New Mexico’s Xanadu Gallery, which does sign consignment agreements with the artists it represents, noted that collectors who seek to privately commission one or another of the gallery artists will get “cold feet” when asked to sign a document. “Clients become uncomfortable with the written-down details. We tell clients that the deposit is nonrefundable, but if there isn’t 100 percent satisfaction the deposit can be used toward another piece. They say, ‘What, you mean I can’t get my money back if I don’t like it?’ So, now we just work on a handshake basis.”
Written agreements can be broken as easily as verbal ones. Verbal agreements are legally enforceable, although disputes may be settled much more quickly when there is a clear agreement in writing signed by both parties. Certainly, the legal costs would be less, if the dispute reaches that stage, because it takes less time to enter a legal document into evidence in court than gathering hours and hours of conflicting depositions by both sides, disputing what was said when by whom.
The threat of “turning off” a dealer may well make an artist reluctant to present any written agreement to his or her potential agent. However, artists and their dealers should discuss with some specificity how they will work together – it could be at one meeting or over the course of weeks – and this set of agreements could be written up by the artist in the form of a letter or email that the artist asks the gallery owner to approve. (An emailed “OK” to such a communication is legally binding.)
A form of marriage the relationship between artist and dealer may be, but marriages are recognized in law with each side having rights. An artist-dealer relationship that has no written expression of the nature of the relationship is perhaps more comparable to “shacking up.” Artists may still be able to pursue their legal rights in the event of a falling-out, but it likely will take longer and cost more to sort out.