On December 11, 2024, I had the pleasure to join a drop in legal clinic hosted by CARFAC alongside Bryce Kanbara and Natalie Wood, hosted by Flora Shum, and Celeste Cole from CARFAC and Tyler Kowalchuk from ALAS (Artist Legal Advice Services). The discussion on the day pointed out several critical issues that artists face in regards to dealing with galleries and among them was the alarming lack of contracts in relation to representations artists were to receive.

Many artists are told by galleries that they don't have a contract and that if they want to be represented, it will be without a contract. In many cases, an artist may have no choice but to take a risk. It's a risk due to the fact that no agreement or one with vague terms leaves an artist open to not getting paid, getting lower than desired commission percentages or not getting paid on time. In addition, there may be a lack of clarity around termination or exclusivity provisions. It is not recommended to proceed without a gallery consignment agreement.

Many artists are told by galleries that representation will be offered without a contract. This puts artists in a vulnerable position, as vague or non-existent agreements often lead to problems such as:

• Delayed or non-payment.

• Lower-than-expected commission percentages.

• Ambiguity around termination and exclusivity terms.

This is exploitative because it can lead vague or no agreements leading to problems later.

When an artist and gallery fail to draft and sign a contract, the artist runs the risk of being exploited. It is highly recommend always working with a gallery consignment agreement as it clarifies certain issues and such agreements are meant for protection of both parties

If it is not possible to work on the contract first, the artist may instruct the gallery of the terms in writing, such as email or informal letters. This would document the agreement made and clear the ambiguity of the terms.

However, if an artist has no choice but to proceed without a contract, it is highly recommend that one documents the terms whether through an informal email or letter to provide as much clarity as possible on the relationship. This clarity will provide a clear path for an artist in the future.

Artists often face unequal bargaining power in their relationships with galleries, especially less-established artists. Galleries may:

• Impose unfavorable terms.

• Prioritize other artists in their roster.

• Fail to adequately promote or support the artist's work.

Understanding this dynamic is key to navigating these challenges effectively. Transparency and detailed written agreements help level the playing field.

Without a contract, artists take significant risks, exposing themselves to unfair treatment. It is highly recommended to always work with a gallery consignment agreement to ensure mutual understanding and protection.

If proceeding without a contract is unavoidable, artists should document the agreed terms in writing, such as through an informal email or letter. This clarity helps establish a clear framework for resolving potential disputes.

Essential Contractual Issues for Artists

To protect their interests, artists should discuss the following points with galleries and aim to incorporate them into a written agreement:

1. Exclusivity
   Clarify whether the gallery has exclusive rights to represent your work and, if so, the duration and scope of this exclusivity.

2. Termination Clause
   Specify the terms under which either party can terminate the agreement and any notice requirements.

3. Dispute Resolution
   Include a process for resolving disputes, such as mediation or arbitration.

4. Payment Terms
   Clearly outline when and how payments will be made for sold works.

5. Expenses and Deductions
   Define what deductions, if any, will be made from sales. Artists should argue against deductions, as these costs are typically covered by the gallery’s commission.

6. Commission Split
   A standard gallery-artist commission split is often 50/50, with the gallery responsible for promotion, installation, and other exhibition costs.

7. Shipping and Storage
   Specify responsibilities for shipping artwork to and from the gallery. Typically, the artist ships to the gallery, and the gallery handles return shipping.

8. Insurance
   Ensure the agreement includes a clear insurance clause. The artist typically insures the artwork until it reaches the gallery, after which the gallery is responsible for coverage, including for damage, loss, or failure to return the artwork. This is especially important in the even that the gallery misplaces, damages or fails to return an artwork.

9. Intellectual Property and Reproduction Rights
   Specify that the gallery may only reproduce images of the artwork for marketing and promotional purposes, and only with the artist’s explicit written consent. Typically, a gallery does not have the right to reproduce the images except for marketing and promotional purposes of the exhibit. Even then, a gallery must have explicit written consent from an artist to use artwork images for promotion.

10. Sales Records
    Request copies of sales records for transparency and accountability.

11. Consignment Period
    Define the duration for which the gallery will hold the artwork and establish timelines for its return if unsold.

12. Control and Custody (Bailment)
    Galleries act as bailees, legally responsible for the artwork’s care while in their possession. The agreement should detail their duties, including storage, security, and insurance. Galleries take on the role of a bailee, meaning they are legally responsible for protecting the artwork while in their care. This includes providing proper storage, security, and insurance.

13. Disputes Over Duty of Care
    Address liability if the gallery fails to protect the artwork, such as during exhibitions or cross-border shipping.

14. Budgeting for Exhibitions
    Clarify responsibilities for exhibition-related costs, including framing, advertising, and promotional efforts. Confirm if these costs are covered by the gallery or deducted from sales.

15. Collectors’ Information
    Artists may request collectors’ names and contact information to foster direct relationships.

16. Artwork Modification: Ensure galleries do not alter works without prior approval (e.g., the Michael Snow v. Eaton Centre case). Prohibit unauthorized modifications to the artwork (e.g., Michael Snow v. Eaton Centre case).

17. Values Alignment: Clarify how artwork is marketed and ensure it is not associated with causes that conflict with the artist’s values.

18. Damaged Artwork: Specify procedures for handling damage during shipping or exhibitions.

19. Promotion Diligence: Ensure the gallery commits to adequately promoting the artist’s work.

20. Clarify the difference between using artwork for advertising an exhibition and other promotional purposes.

21. Require explicit consent for any image use beyond standard marketing.

22. Image Misuse: Protect against unauthorized use of artwork, especially by groups or causes that do not align with the artist's values.

23. Cross-Border Representation - Define how the gallery will represent the artwork when shipping or displaying it internationally.

24. Return of Artwork: Outline responsibilities for returning unsold artwork, including timelines and shipping arrangements.

25. Collectors’ Information - Request collectors’ names for provenance and if you should ever need to reach out to them to loan the works for an exhibition. However, most galleries may be resistant but clarify that you're not asking for contact info and that any business dealings regarding sales would be through the gallery to respect their contacts.

CARFAC offers a standard gallery agreement template, which can serve as a starting point for artists negotiating with galleries. Artists should leverage this resource to ensure their rights are protected.