Artists sometimes find that a commissioned work – either public or private – is rejected after the commission has taken place.

Ideally, a commission contract should be in writing, in which case written provision should have been made for this situation – a ‘rejection fee’ arrangement should have been agreed to enable you to be paid a reasonable amount for work done, and for the commissioner to reject the finished work.

If such an arrangement was not made (and if there was no written commission agreement, it would be hard to prove that it was), then you could argue that you had a legitimate expectation to be paid for work done – not necessarily for the full amount agreed for the work being executed and sold to the commissioner, but to reward fairly for aesthetic skill and labour expended at the commissioner’s request.

Put another way, when an artist undertakes a commission (i.e. a painting portrait), there should ideally be discussion and written agreement of at least the following:

  • What you would deliver to the commissioner
  • The latest date for delivery of that work
  • The overall fee for the artist originating and executing the work (not including its sale to the commissioner)
  • Staged payments of the overall origination and execution fee; for example: one third of the origination and execution fee before starting work, a second third when the commission is two-thirds done (so that the commissioner can see how the work is developing, and approve / reject at that stage), and the final third when the work is completed
  • Any extra (nominal) fee to be paid by the commissioner for buying and owning the work (as against a fee paid to the artist for originating and executing it), and arrangements for its delivery to the commissioner
  • Clarification that the commissioner will own the work; but only after all fees have been paid to the artist
  • Clarification that the artist will retain copyright and that the commissioner can only reproduce the work for the specific and limited purpose of advertising its re-sale.
This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.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.