Gifts of work by artists to public institutions are an important and valuable method of promoting wider interest in and access to work, and of acquiring critical endorsement.
During the past year, several correspondents have raised the same or similar questions and concerns following the column published last year: 'Beware of Artists Bearing Gifts' (AM197). In that piece we took a general look at the best practices; in this piece we consider them in more detail.
UK law is simple and flexible in relation to gifts: first there needs to be evidence of the donor's intentions to make the gift; secondly, evidence that the donor made arrangements for the work to be transferred to the donee's possession. It is best practice to make these intentions and arrangements by way of documentation, with donor and donee each having copies and the artist/donor always keeping a transparency or other visual record of the work before it leaves the studio.
Most donors prefer to make their gift conditional. That is to say, to require the donee to agree to specified terms and conditions which, if not fulfilled, will make the gift void or invalid and require the work to be returned to the artist/donor. Let us consider some of the conditions that could be introduced into the arrangement.
STATEMENT OF GIFT
After rehearsing the identities of the donor and donee, their addresses, and a description of the work, it is important to specify that the gift is 'conditional'; in other words, the gift is not outright, but has strings attached. Here are some suggestions drawn from artists' past experiences.
CONDITIONS OF THE GIFT
Care of the Work
- It should not be distorted in any way by reframing in a manner which deviates from the artist's original choice of frame
- any re-framing should be done in consultation with the artist
- any damage to the work should be reported to the artist as soon as practically possible and before any restoration or conservation work is undertaken
- any damage requiring restoration or conservation will be carried out at the donee's expense and under its supervision, in full consultation with the artist
Exhibiting the Work
- the donee may show the work itself (either as a whole or in any edited group of triptychs – in cases where there is more than one piece comprising the whole work)
- the donee may lend the work to other (public) museums, galleries or institutions for exhibition purposes; but should ensure nail to nail insurance cover; and should inform the artist, in advance, of the proposed exhibition venue; and should supply to the artist free of charge copies of the catalogue, publicity and advertising material for the showing in which the work is to be included; and the donee should ensure that its own standards for exhibiting work are met by the third party venue
- (neither) the work (nor part of it) may be shown in any way other than that designated by the artist (ie specify requirements)
- whenever the work is exhibited to the public, at the donee's own venues or elsewhere, the donee should ensure that the artist is credited as author and that the title of the work is displayed correctly (ie special requirements); and should ensure that the artist is credited as copyright owner, for example '© A N Artist 1956'.
Intellectual Property Rights
- the artist retains ownership of copyright in the work
- the artist asserts his/her moral right always to be identified as author of the work whenever it is exhibited to public viewing and whenever the work is reproduced for public distribution
- the artist asserts higher moral right not to have the work or a reproduction of it exposed to public viewing with any addition, deletion, amendment or alteration to it
- the donee is authorised to make or have made reproductions of the work, only so long as the artist is sent free of charge copies of any such reproductions
De-accessioning the Work
- the donee should not sell or donate the work to any other person or body
- if the donee wishes to de-accession the work, it shall first offer to re-donate it to the artist who will therefore have first refusal of the offer
Destruction or Theft of the Work
- the donee should not intentionally destroy the work
- if the work is destroyed or stolen, the artist should be notified as soon as practically possible; and shall be paid compensation by the donee for loss of the opportunity of the work's being viewed by the public; such compensation to be paid in accordance with an amount settled by the donee's insurers or other identifier against such loss
- the donee should at all times ensure that the work is insured or indemnified against theft, destruction, irreparable damage or reparable damage, in an amount agreed in consultation with the artist.
Breach of Condition
- In the event of a breach of any of the conditions attached to this gift, the artist and donee should agree to have the matter referred to an independent arbitrator appointed by them jointly
- the artist and donee should agree that the arbitrator's decision will be final and binding upon each of them
- the donee should undertake to pay all reasonable expenses of the artist and arbitrator in connection with the enquiry into the dispute
In the case of a gift by a UK artist to an institution located abroad, there should be an agreement as to which law will apply in resolving any disputes arising under (ie conditional gift agreement: for example; this gift, and any dispute arising from it between the artist and donee, shall be governed by the law of (say) England and Wales).
The suggestions set out above may appear to be very legalistic. They are not meant to be; they try to capture in simple terms the concerns that donating artists have had in this regard over the past year. In fact, they reflect concerns (and legal disputes) that artists have voiced (or been involved in) perennially.
Perhaps the most important suggestion of all is that the artist/donor and the institution sit down together and discuss all of these matters, clarify any sticking points, and put them into a written agreement, before the gift is made. Doing so can, in itself, avoid much misunderstanding, expenditure of emotional energy, time and money, for both parties in the future.
© Henry Lydiate 1997