Not a word was spoke between us,
There was little risk involved.
Everything up to that point
Had been left unresolved*
Last minute cancellation of one-off exhibitions on grounds of taste is not new. Sometimes it leads to publicity for the artist; almost always it will cause financial loss for both artist and gallery.
A quick look at artist Patrick McBride’s experience bears this out.
Twenty-four hours before his private view, McBride’s exhibition ‘Fresh Start in a New Town’ was cancelled by the Todd Gallery, London, on grounds of taste. In November 1991 the Todd Gallery wrote to McBride inviting him to exhibit, and suggesting dates. They were familiar with his work. McBride then telephoned to say he was interested and confirmed dates. The Todd Gallery then wrote back reconfirming the agreement. However their letter did not contain details of the terms and conditions of the agreement, just that there would be a show and the probable dates.
On the strength of his exhibition agreement, he was granted a bank loan; he planned his show, and employed people to help him complete it. In May 1992 McBride presented the gallery with details of his proposals. The gallery forwarded him £750 (representing the advance sale to the gallery of one piece from the show). On 15 June McBride delivered the work to the galley and there were last minute framing alterations (at the gallery’s expense). At 6 o’clock on 16 June the Todd Gallery informed McBride that they were cancelling the exhibition. On 17 June the planned day of the private view, McBride’s work was returned to his studio and a note placed on the door of the gallery stating that the show was cancelled.
The Todd Gallery claimed to have paid out over £1,100 in preparation for the exhibition. They lost this sum and, they say, more. McBride also lost. He incurred a bank debt, lost the opportunity to exhibit and is left with the work. Both publicly funded and private galleries face pressures which may cause them to pull out of exhibiting controversial works, even where they have contracted to do so. Public galleries may be concerned not to upset public opinion and/or local politicians. Private galleries always face pressure to achieve sales. Questions of personal taste may also determine a gallery’s decision to pull out of a particular agreement to mount an exhibition. But what are the legal implications of doing so?
Galleries, whether public or private, may well refuse to exhibit work, even if they have legally contracted to do so. However, they might find themselves to be in breach of contract and have to pay the artist for any loss he or she has suffered, for example, loss of exhibiting time, cost of re-exhibiting elsewhere, special framing costs, transport costs etc. A gallery might seek to defend itself against such claims by saying that it could not show such artwork in public, because to do so would involve committing an illegal or criminal act. If this could be proved to a court’s satisfaction, the artist’s claim could fail In response, where the gallery believes the artist’s work is controversial, as in McBride’s case, and still agrees to exhibit it then it has agreed to run the risk of criminal prosecution; and that the artist’s losses should still be recompensed for breeching a binding agreement to run such risks in any event. What are these risks?
Insults and abuses: The Public Order Act 1966
This Act was devised to deal with street disturbances, not artworks. However a gallery could be affected if it displays any ‘visual representation’ which the police consider to be ‘threatening, abusive or insulting’. For the gallery to be guilty of such an offence, the display must be within sight of a person likely to be caused harassment, alarm or distress. Galleries probably have little to worry about. If they have acted reasonably and had no reason to believe that viewers would be caused harassment, alarm or distress, they will have a defence. In any event, this is a relatively minor offence (maximum sentence £400 fine) and the police in practice would only take react to complaints from the public, would convey them to the gallery, and invite the gallery to remove the exhibit.
Obscenity: The Obscene Publications Act 1959
A gallery could be guilty of publishing obscene articles, if the prosecution could prove a tendency to deprave and corrupt its viewers. Galleries are in a strong position, because it is a defence to prove that showing the artwork is for the public good on the grounds that it is in the interests of science, literature, art or learning. In any event, exhibitors cannot be arrested without a court’s warrant, which police in practice would be reluctant to seek before they had ‘a quiet word’ with the gallery.
Outraging public decency
This offence is rarely encountered. It was brought to the attention of the art world when Rick Gibson (maker of the human foetus earring) and Peter Sylveire (of the Young Unknowns Gallery, London) were successfully convicted under it and fined £500 and £350 respectively. The prosecution must simply prove to a jury that the artist and/or gallery has done an act which involves an outrage to public decency: the jury decides; but, in the first instance, the police would have to make up their own minds and would in practice react to complaints from the public – as usual, there would be ‘a quiet word’ with the gallery.
In the case of the Todd Gallery, it does not appear to have cancelled the exhibition on the grounds that it would have been illegal, but on the grounds of taste. The parties, gallery and artist, had clearly tried to follow good practice by contracting in writing. So what went wrong and why was the agreement broken? Neither party had clarified the question of ‘taste’, how it would be resolved and by whom: not a word was written or spoken; presumably they saw little risk involved. One lesson is clear, at least: everyone involved in such an agreement needs to know not only the date and place of exhibition, but also what type of work will be exhibited and what are the ‘parameters of taste’.
In the UK, it is easy to create a valid, legally binding contract for a one-off exhibition. There is no need for lawyers, red tape or even writing. Gallery: ‘We’ll give you an exhibition in June 1993’, artist: ‘Fine, I’ll get the work to you by the end of May’. If spoken by consenting adults, these words would be enough to create a legally binding contract – which would be supported by the courts, if necessary. Broken contracts lead to loss of money, loss of reputation and can end up in court. Such aggravation is easily avoidable.
Both sides should:
- HESITATE – before rushing into an agreement that has not included all foreseeable problems
- NEGOTIATE – discuss and decide on the terms and conditions (exactly what sort of works will be shown, are there constraints on controversial work; a checklist is needed)
- NOTATE – details are always forgotten and liable to dispute, so the parties should keep a note of what is verbally agreed
- INDELIBLY COMMUNICATE – both parties should write to each other confirming the details of the agreement, so that everyone is dear
- DUPLICATE – copies of all documents noted or exchanged, should be kept
- PARTIES: artist, gallery
- EXHIBITION: artist’s promise to provide works, gallery’s promise to show them
- VENUE: dates, places, spaces
- WORKS: which – existing and/or projected, parameter of taste
- DELIVERY: by whom, when, where and at whose expense
- HANGING: by whom and where, and who has the final decision, especially on taste
- COLLECTION: by whom, when, where and at whose expense
- DAMAGE, DESTRUCTION AND THEFT: who pays, how much and when
- INSURANCE: who arranges cover; for what amount, at whose expense
- OPENING HOURS: days and times
- INVIGILATION: by whom, when and how and at whose expense
- PUBLICITY: what will be done, by whom, when and at whose expense
- PRIVATE VIEW: what will be done, by whom and at whose expense
- AGENCY: whether the gallery is given exclusive selling rights during and/or after the show; whether a written contract of sale will be used and, if so, discussion of its details and form including the gallery’s commission.
Note: LETTERS: if both parties do not sign one mutually agreed paper/contract/agreement, one side should write a letter to the other confirming all the items above and keeping a duplicate file copy.
© The Artlaw Team 1992
*© 1985 Bob Dylan
The Artlaw Team members are: barristers Natalia Berkowitz and Henry Lydiate, who have a special interest in the law relating to the arts; and James Odling-Smee who is a writer and editor specialising in arts management including legal matters