Where a gallery holds works that are owned by the artist, the gallery holds them as a “bailee” under what is known as a duty of bailment.
The effect of this duty means that the gallery, as bailee, is under a legal duty to take care of the works. If the gallery has agreed to return the works, but cannot now locate them, the gallery is responsible to pay for the works, at a fair market value.

This can be difficult to assess, and one option is to start with the agreed minimum selling price of the work if one had been agreed. If one was not agreed, the artist should consider what a fair market price might be, as a starting point in correspondence with the gallery, as detailed below. In that case, it will be helpful to give some indication as to how that figure has been reached e.g. price of similar sold works.

If the value of the work is £5,000 or less, one way of moving this forward is as follows:

The artist may wish to write to the gallery, in a polite and reasonable voice, saying that as the gallery is aware, they have the work in question and have agreed to return it. The artist should ask that they please make it available for collection within say, 10 (ten) working days, or if they cannot make it available, they pay £X pounds, being the value of the work. The artist should say that, it cannot be delayed  any longer, and if they have not received either the work or payment by that date, they will have no other option but to start legal proceedings. The letter should be sent by recorded delivery – keeping a copy.

If the gallery has not responded with the return of the work, or payment, then the artist can commence a legal action in the Small Claims Court, which is a user-friendly way in which individuals can bring small claims themselves for claims of £5,000 or less.

If the value of the work is in excess of £5,000, then the artist would need to consult with a solicitor.

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.