By Monique Brown, 3L at University of Tennessee College of Law and Spring 2019 Semester-in-Residence Participant
Working with an art gallery can be extremely beneficial to artists, but there are a few things you should think about before putting the ink to paper. First, it is important to know what your legal rights are. The Copyright Act grants artists certain exclusive rights, such as the right to reproduce the work; right to prepare derivative works; and the exclusive right to display the copyrighted work publicly. As an artist, regardless of whether you sell a piece of artwork, you still retain those rights; however, it is extremely important to review any contracts you are presented with, and be aware of exactly what rights you may be signing away.
What is the role of an art gallery?
For all of my science-loving creatives out there, the gallery and artist relationship is much like mutualism: both parties benefit. The galleries provide artists with a place to display their artwork, and the artist provides the gallery with artwork. Though some artists enjoy the business aspect of selling a piece of artwork, most like to focus their time and energy on creating beautiful and unique works. Galleries take away the pressure and time associated with marketing and selling art. Galleries typically contract with the artists, giving them the right to sell the artwork on the artist’s behalf for a percentage of the profit. These contracts are often referred to as art consignments.
What is an art consignment?
Most art galleries and dealers do not buy artwork from the artist; rather, they accept the artwork on a consignment. An art consignment is when artwork is left in the possession of a third party to sell (e.g., an art gallery). It is important to note that by entering into this type of agreement, you are relinquishing your exclusive right to display your artwork publicly. While this may not seem like a big deal (and very well might not be), you want to make sure you realize what you are signing. In Tennessee, art consignments are governed by § 47-25-1004 of the Tennessee Code, known as the “Tennessee Consignment of Art Act.” The statute states that the art dealer (gallery) “after delivery of the work of art, shall constitute an agent of the artist for the purpose of sale or exhibition of the consigned work of art within the state of Tennessee.” In other words, the art dealer is a representative of you for purposes of selling your artwork.
How and when do you get paid?
I know you do it for the love of art, but the money is important too. It is important that your contract specifies the requirements for payment once the gallery sells your artwork. For example, you want to make sure the contract addresses the percentage of profit the gallery will receive from the sale of your artwork, and the timeframe in which the gallery has to notify you that your artwork has been sold. The Tennessee Consignment of Art Act states that the gallery must put the money from the sale of a piece of artwork in a trust. The artist must be paid first, unless the artist agrees otherwise in writing.
Does the art gallery have to pay me if they damage my artwork?
YES! In Tennessee, the dealer is responsible for the loss of, or damage to, the work of art while in their possession. The catch is that most galleries make their money solely by selling artwork. Therefore, if they fail to sell artwork, then they may have no money to pay you if something happens to your artwork while in their possession. It may be a good idea to secure independent insurance on your artwork, just in case the gallery is insolvent.
If the art gallery goes out of business, can their creditors take my work?
No, they cannot. As long as you did not assign all of your rights to the dealer, you are still the exclusive owner of the work; therefore, the Tennessee Consignment of Art Act prohibits creditors from making a claim to your work.
For more information on the artist and art gallery relationship, be sure to attend our workshop “If the Wall Fits: Building Gallery Relationships that Work For You,” on February 28, 2019, from 11:00 to 1:00 at the Rymer Gallery. Attendees will learn about the relationships between artists and galleries during a panel discussion moderated by Kirk Schroder, a nationally recognized entertainment attorney with significant expertise in visual art law. The panel will feature representatives from top Nashville galleries including The Arts Co., Tinney Contemporary, The Rymer Gallery, Red Arrow Gallery, and Channel to Channel. This course has been approved by the Tennessee Commission on Continuing Legal Education for a maximum of two (2) hours of general credit.