The lack of gallery premises or adequate showing space has not prevented many actual or would-be dealers approaching artists offering agency deals, with a view to promoting and selling the artists' work and their reputations.
In recent months there has been a marked increase in the number of non-gallery-owning dealers offering artists agency deals, and it is worth looking at the problems both parties may encounter when trying to achieve an appropriate agreement.
It is, of course, of paramount importance that both parties agree, at the outset, that they are suited to each other. This is crucial: there is no point in the artist having a dealer whose administrative and promotional skills the artist admires and wishes to employ, but whose honesty and integrity is not respected; nor in the dealer representing and promoting an artist for whose work s/he has little or no sympathy or understanding. Assuming that both parties have considered this factor and decided to embark upon a professional relationship, what next? The need for a written agreement embodying the nature of the deal and its administrative arrangements, and serving both parties as a complete and accurate record, has been advocated ad nauseam in these columns.
So what factors ought both parties to discuss when considering the terms of their written agreement?
The name and address of the artist and the dealer should be clearly stated, the latter showing whether s/he is acting privately, for a company, or for a group of people.
Nature of the Deal
Whether the agent is to be employed to promote the artist and his reputation exclusively and/or in conjunction with other agents. And/or whether the agent is to be given any of the following rights to and on behalf of the artist:
- to sell work;
- to arrange commissions;
- to arrange exhibitions;
- to arrange lectures, talks, media appearances.
And most importantly, which works are to be promoted, sold, exhibited, and so on, namely: prints, paintings, sculpture, photographs, drawings, installations, or any other work.
Whether the agent is to be given the right to sell reproductions or rights to reproduce the artist's work, for what price, and in what manner.
Sale of reproductions and of reproduction rights can be very remunerative and the artist should make it very clear what, if anything, the agent is permitted to do for the artist in this respect. Written copyright licences should always be used, and the agent's duties in this regard should be made very clear.
Whether the agency is to extend to the United Kingdom, Europe, the States or the world. This is most important. If nothing is said about the geographical extent of the agency, then the implication will be that the artist has struck a deal which will extend throughout the world.
Length of Time
Whether the agreement is to be for a fixed period – a one-off venture, for a month, a quarter, a half-year, a year, or more. Perhaps a periodic agency is more appropriate – from month to month, or quarter to quarter and then on as appropriate; and then a clause enabling either party to end the deal on given written notice to the other.
Whether the dealer has a right to sell work and whether that right is to be exclusive (even to the exclusion of the artist) or to be in conjunction with others. Whether the agent is only allowed to sell by using the artist's written contract of sale and, if so, a copy of such a contract should be annexed to the written agency agreement, and would include obvious details such as selling prices, commissions, rights to borrow back, and so on.
Whether the agent has the right to negotiate commissions for the artist and, if so, whether exclusively or in conjunction with others; if a written commission agreement is to be used, that should be annexed to the agency agreement.
A clause similar to that for commissions should be included.
If the artist intends to consign finished works to the agent in order to start the agency off, a clause should be included to this effect and, moreover, a separate written consignment agreement should be signed between the parties embodying the administrative arrangements for such work, and including the agent's written confirmation of receipt of it.
It should be made absolutely clear whether the agent is to receive a fee for his work, and how that will be calculated and paid e.g. as commission on any deals arranged and, if so, what percentage: as a flat fee; or as a retainer. VAT should be discussed and agreed. The method of payment to the agent must be clearly stated e.g. from receipt of monies on behalf of the artist, or payable back to the agent after the artist has been paid; and whether by cash or cheque.
Of equal importance: when and how the artist is to be paid. Whether statements of account, invoices, and names and addresses of buyers, commissioners and so on shall be supplied. Whether and, if so, when, where and how advances to the artist from the agent are to be paid – and whether they are to be offset against income derived for the artist or to be non-returnable in the event of no such incomes arising.
Restraint of Trade
Whether the dealer is to be allowed to act for the artist on any matter after the end of the agency agreement, or to use any knowledge or information about the artist and his work gained during the currency of this agreement. Reciprocally, whether the artist is to be allowed to strike private deals with business contacts achieved by the agent during the currency of the agreement; or, indeed, to use such contacts after the agency deal has ended. This is a particularly tricky area and has given rise to enormous problems in the past; a prudent and balanced clause here can avoid a great deal of future trouble.
A useful clause can be inserted which will enable both parties to have disputes arising under the agency deal to be referred to an independent arbitrator, instead of having to take such matters straight to a court for settlement which can involve great expense in time and money. The arbitrator nominated should be someone acceptable to both parties and generally respected in the arts community.
Names and Addresses
A simple clause should be inserted by which both parties agree to inform each other of any changes that may occur.
A useful clause, particularly when making a deal which might involve overseas commitments or, in fact, when hiring an agent who is a foreigner or has a foreign aspect to his dealing operations. The clause should state which law will govern the interpretation and resolution of any dispute arising under the agreement – if any party to the deal is English, then English law should be stated as applying, for preference.
There are a number of other matters which are not mentioned above which could be appropriately inserted. The most important thing for both parties to remember is to discuss the above points and reach agreement on them. It looks like a very long checklist, but it is really a list of the matters which any professional dealer or artist would want to discuss in any event.
Having reached an agreement on all these points, as appropriate, one or other of the parties should arrange to have the agreement drawn up, preferably by a lawyer experienced in dealing with such matters; and both parties should then seek legal advice as to the meaning of the written draft before signing it. When signed and dated, each party should keep a copy for future reference.
© Henry Lydiate 1980