Introduction – Resisting Easy Commodification?
The sale of artworks represents an important income stream for any artist. Comparatively speaking, video is now firmly established within the market, and now has a familiar place within public and private collections. In a recent report commissioned by The Contemporary Art Society, Sheila McGregor has suggested that 25% of local authority and university collections have acquired video and film works, which is good news indeed. Whilst it is true that, these days, video is much more established as a ‘saleable’ art form, this is not entirely the case with larger-scale video installations, particularly where hardware forms part of the work.

With technology-reliant works, however, potential income through sales is often de-emphasised in favour of income through residencies or commissions. In part, this is due to a general perception that much new media work is not particularly ‘saleable.’ Add to this, the predominantly ‘non-materialist’ ethos that has attended the establishment of new media practices, and the lack of gallery representation forthcoming for new media artists.

For artists who work with new media, the ‘sales’ question remains problematic, from philosophical and practical points of view. There is residual resistance to the market, and to the commodification of artworks that it precipitates. New media artists are, as Francis McKee has suggested, often ‘heavily invested in an “anti-materialist/anti-object” sentiment.’ Often there is no ‘object’, so what is there actually to sell?

Increasingly, new media artists are invited to undertake commissions to create specific new works, for private, public or corporate collectors. This is one variant on selling, and subject to a different emphasis insofar as a commissioner is agreeing to pay you for your skill and labour, and negotiations will be conducted to agree terms. Another variant, which may gain greater popularity into the future, is licensing, particularly in relation to new media works. A license is a document that sets the terms of use for a piece of work that is agreed between the author or rights holder (the licensee) and intended user (the licensor).

In a practical vein, for the new media artist engaging in sales or commissions, or licensing their work, onus is placed upon them to administrate and facilitate agreements from their studio.  For those artists prepared to do so, little information or guidance for conceptualising and preparing video or new media works for sale, and for negotiating or presenting details of sale, exists.

What follows is a series of questions and steps to help you:

• Conceptualise your video or new media works as ‘saleable’
• Negotiate with interested parties in relation to sales of your work, or new commissions for specific works
• Prepare details of sale for your work

Dialogue with the Purchaser / Commissioner
Museums, galleries and private collectors are now beginning to consider purchasing or commissioning new media works. Institutions such as the Hugh Lane Gallery and IMMA in Dublin have been commissioning new media artworks, and Aberdeen City Art Gallery in Scotland have in recent years acquired two works that run from hard drives. Whether a collector expresses a general interest in your work, or makes more specific enquiries about acquiring or commissioning a new video or new media work from you, it is extremely important to establish a dialogue, and to ascertain such facts as:

• Are they interested in a specific work that would lead to a sale?
• Might they be interested in commissioning a new work from you based on what they have seen elsewhere?
• In what context has the interested party seen your work, or the specific work in which they are interested?
• Have they seen the work installed, or have they seen it in slides or reproduction?
• Was it at your studio, as part of an exhibition, or installed as a commission?

It is important to establish these facts, as they will influence the buyer/commissioner’s expectations of the work, and what they actually think the work ‘is’. Those facts should hopefully prompt you towards various considerations, namely:

I am not sure that I could ‘sell’ that particular work as I installed it for that show, for practical reasons, and also for reasons to do with my intentions for it.

What the purchaser/commissioner saw was not the final version of the work that I displayed.

I have installed it in three separate venues, and each time, I have shown it differently. On one occasion, I added a few more elements, which I took out the next time. I am not sure which version I prefer, or which I would consider the definitive version. It could change again?

What Does the Work Constitute: A Checklist
When faced with a potential sale or commission, a frequent question is; ‘Just how definitive about what the work ‘is’ should I be? I don’t necessarily work in a ‘definitive’ way.’ Below is a checklist of aspects for you to consider:

What is the history of the work?
Was it made/produced for an exhibition or for a commission?
Has it been shown more than once?
Has it been ‘live’? For how long?
Did you modify it from show to show?

What are the key elements of the work?
The projected image? The monitor image? Why?
A particular kind of space?
The software? Why?
The hardware? Why?
A particular URL, or a flow of data?
Objects?
A particular functionality?
Interactivity? User manipulation?

Which physical parts are ‘specific,’ and which are more ‘generic’ or ‘variable’?
Do I care what kind of monitor the work is shown on, or how the monitor is configured? Do I require that the work is shown on a certain type of monitor, or do I require that it be shown on a certain model?
Do I care about hardware, or playback equipment? For instance, do I care whether CRT or LCD projectors are used?
What about additional items, like unicol stands, keyboards, furniture, or speakers?

Other factors
Does the work purposefully have a limited life span?
Could someone else install it?

‘Self-Contained’ Versus ‘Live’ or ‘Networked’ Pieces
A growing conundrum for new media artists is ‘If I make ‘live’ works, should I ‘sell’ them? Should I only sell self-contained works?’ There are obvious ways in which a ‘self-contained’ new media work is considered more saleable than one that requires a constant network connection, and because of which the content of the work would likely continuously evolve or update. In part, this is informed by our perception that goods for sale or ‘commodities’ be ‘fixed,’ ‘defined’, and ‘knowable’. Likewise, it is often suggested that video artworks that simply comprise the ‘projected image’ are much more saleable than video works that are multiple channel works, or those that require specific monitors or playback equipment as a sculptural element of the work. There is also conceivably a difference between ‘live’ works that reside solely on the web and those that have been installed in galleries, or between those that rely on ‘live’ information pulled off the web and those that function with pre-selected or archived data.  A key issue is life span. It is important to ask yourself: Does a limited life-span limit the work as ‘saleable’?

• If your work has a limited life span, then it can still be sold, so long as you make the purchaser fully aware of this as an eventuality. Then they will be making an informed choice.

• You might be happy to develop a simulation of a ‘network-dependent’ work in the future. However, this is a specialised kind of commitment to make to an artwork, one that needs to be carefully weighed against several factors.

• You could make the work available in a large edition.

• It may be that you consider licensing the work rather than selling it.

A related matter: Is it important to check whether the content of your work raises copyright issues?
This is a key question that arises with some new media and video works, particularly those that rely or reside on the Internet. Copyright issues may have implications for the purchaser’s ability to display or loan the work for instance. It is important to clarify these issues, and be able to correctly inform and re-assure your potential purchaser. Own it is a free Intellectual Property on-line resource centre. Although it is a service targeted at London-based artists, it offers services, fact sheets, workshops, and advice that might be helpful.

See also a text prepared by Linda Scales on Copyright and Intellectual Property in the Legal and Technical Guides section of the Info-Pool

Editioning: Benefits and Considerations
In an article, entitled Editions or Series: Artists Be Clear (2004), Art Law solicitor, Henry Lydiate, outlines prints, photographs and cast sculptures as the most common examples of works that are editioned. These are examples where there is an original source, be it a screen, plate, transparency that is used to create multiple originals.

The concept of editions transfers to video and digital media insofar as they are reproducible and duplicable. It is also a way of maximising the potential sale return from a single work, or mitigating the sale of a work with limited lifespan at a lower cost. If artists are selling work that is live and has a limited life span, they often sell work of that nature inexpensively and in large editions.

With video works, editioning is a well-established principle. Those that comprise a DVD or tape, and can be shown very flexibly, can be issued in a variety of editions, such as 3, 5, 7, or even 15. It is important to retain an ‘artists proof’ or ‘artists master’ in these cases. So that a work would exist as an edition of 2 + artist’s master. Video installations, that are multiple channel, or which comprise hardware, computer programs etc. are often sold as uniques, or possibly as a limited edition of 2 or 3.

For further information about issues related to the editioning of work, read Henry Lydiate, Editions or Series: Artists Be Clear, 2004 available on the Artquest website

A related matter: Is it permissible to develop ‘saleable’ counterparts or versions of works?
Some artists do ‘transcribe’ or ‘iterate’ works, and these present plausible options with new media works in particular. Sometimes, but rarely, an artist will consider this option in order to achieve a work that takes a more saleable or collectable form. Such instances are based on dialogue and the desire of artist and curator for a particular work to have some form of representation in a particular collection. It is important for you to consider whether these constitute additional works, or the same work.

For example:

• I have produced an off-line, gallery version of a network dependent piece. I am going to produce an editioned CD-Rom as well.
• I have produced a reduced version of my video installation, which can be shown more flexibly.
• I have produced a suite of photographs comprising still images from a video work.
• I have produced a suite of digital prints, using some of the visual material that my project generated.

More recently, the issue of re-versioning works has extended towards software. If you have developed a piece of software for a commission, can you then use that same software to make other works, subsequent to the commissioned work?

• Do I need to give the purchaser a later version of the work? Can I sell later versions of the work to other interested parties?
• I was commissioned to make a new work for a buyer, and would like to use the software that I developed for that work to make others.

In a sense, some new media works have a ‘generational’ aspect built into them, as part of the medium’s capacity – for instance with re-versioning a work comprising Software (i.e. I/O/D’s Webstalker).

However, the issue of re-using software incurs all kinds of considerations that relate to terms of agreement, to the covering of production costs, and they require clear communication from the outset with the potential purchaser, or commissioner.

Delivery
So, how do you decide what to hand over?

• Do I need to hand over hard drive and hardware? What if I only want to hand over the hard drive?
• Even if the work requires specific monitors, do I need to supply them? Or can I expect the purchaser to acquire them?

This varies from artist to artist, from purchaser to purchaser, and from work to work. Some collections /collectors will request specific formats. It will of course have some bearing on the price that you charge, and it is generally something that artists get a feel for with experience.

Some will give one Sub-master, and expect the purchaser to make their own display copies. Other artists supply one Sub-master + one display copy. Some hand over software only, or hard drives with no back ups. You may prefer to supply some items of hardware, and not others.

In essence, however, it is most important to know what you will literally ‘hand over’ to the purchaser, and be able to inform and reassure them that this constitutes ‘the work.’

What about certificates, or instructions?

• Will I be expected to supply a certificate? Is this something I have to do?
• What about installation instructions?
• Or in the instance of video, how to make exhibition copies?

It is useful to make these a part or feature of the ‘saleable’ work rather than an adjunct. It is important to note whether completion of payment by the purchaser will be dependent on the supply of such items.

Detailing the Sale: A Template
So, what do you need to convey to the potential buyer, or commissioner? Below is a possible template for specifying a work for sale:

• Title: (is this a working title?)
• Images: (possibly still images, screen grabs, or of the work as installed)
• Dimensions / physical description:
• Exhibition history /installation history:
• Statement about the work: (which includes description of what you consider the work to be, (i.e. interactive or performed process, or a narrative) and reference to any possible subsequent works that may construe it as part of a series.)
• The work will consist of the following items:  (list the components that you are supplying as the work – include no. of DVD’s or tapes supplied, or hard drive etc. Also, include any certification that you supply with the work.)
• The work will further require the following item/s: (any other items necessary to the work’s display, but which you are not delivering as part of the sale. If you have preferences about playback equipment for instance, state them here.)
• The installation of the work: (describe how the work is to be installed, and outline features of the work’s display that directly contribute to its meaning)
• Copyright issues?
• Availability & price: (state whether the work is available as a unique work, or part of an edition, and prices. You might want to give a purchaser the option to chose between acquiring a unique version (for a higher price), and an edition (for a lower price), in which case, cite both.)

Details of Sale: A Sample
Still Night, 2005
Projected video installation
Dimensions variable
4 projected images looped and sync’d
No sound, Total running time: 35mins

Statement about work:
Still Night is a work that combines four screens installed facing on to each other, which create ‘a room within a room’ in the gallery. The footage is back projected. It consists of four screens of night falling, filmed in different contexts – city, suburb, countryside, and at sea. As night ‘falls’, the screen is filled with an abstract image of sky, illuminated with shifting and distinct colour shifts to the point where ‘night’ seems arbitrarily to have been achieved. As ‘night’ is achieved, the footage is then reversed. Rather than the onset of ‘dawn,’ the viewer witnesses the ‘undoing’ of night.

Exhibition History:
Spacex Gallery, Exeter, 25-04-2005 to 25-06-2005

The work will consist of the following items:
4 x Digibeta Master tapes
4 x DVD display copies
4x Pioneer 7300 DVD players
Certificate of authenticity
Installation instructions

The work will additionally require the following:
1x Cambridge Media Sync starter unit

The installation of the work:
It is intended that the work will create an environment, into which the viewer walks. Therefore, the work must always be projected, and cannot be shown on plasma screens or monitors. The work is of variable dimensions, and the exhibited size of the projected images would be dependent on the size of the exhibition space/ screens available. The work will be supplied with detailed installation instructions from the artist.

Availability:
Still Night can be acquired as a unique work, or as part of an edition of 7. The artist will retain an artist’s copy.

Price for unique work: €XXXXX
Price for editioned work: €XXXX

Remember to note VAT costs where applicable.

The cost of this work can be adjusted if the gallery does not require, or already has appropriate DVD players.

Put it in Writing
When closing a sale, it is very important that you formalize the transaction in writing, in either a Bill of Sale or a Contract of Sale. Sales agreements do not have to take written form to be legally binding. However, it is considered good practice to generate some form of sales documentation which records your negotiations. This kind of paperwork can fulfill a number of purposes:

It constitutes proof of sale, and provides a record for your accounts. In Ireland there is added impetus in respect of the Artists Tax Exemption, whereby artists’ income from the sales of work is exempt from income tax. Bills or Contracts of Sale are essential support documentation for artists, when they submit exemption claims to the Revenue Commissioner.

It also provides both artist and buyer with a clear and concrete expression, in writing, of their respective rights, and their obligations to each other and to the artwork.

Many artists prefer to conduct or record negotiations in the form of a letter rather than a ‘contract,’ particularly where they are responsible for drafting or producing any paperwork. If you are generating just such a letter, it should outline what you consider to have been agreed between yourself and the other party, and its content should satisfy what you both take the terms and conditions of sale to be. Print up TWO copies, and sign both. The purchaser/commissioner should also sign both, and then you should each retain a copy.

Bill of Sale
In 1977, Henry Lydiate offered a template for a Bill of Sale, which still holds well today: ‘A Bill of sale operates more like a receipt. It is an agreement specific to an artwork, or set of works (i.e. a suite of prints). It should note the date and place of sale, describe the work, refer to the parties, and specify the price and terms of payment.’

Lydiate gives the following list of items for inclusion in a Bill of Sale:

* Artists Name:
* Date:
* Place of Sale:
* Title of Work:
* Description of Work:
* Sold to: [name/ address]
* Price:
* Terms of Payment:
* Note: copyright remains in the Artist.
* Signed: Buyer Artist

Henry Lydiate’s full article, ‘Artist’s Bill of Sale,’ can be found on the Artquest website here:

Contract of Sale
A Contract of Sale includes a more elaborated document, which features conditions of sale – these can include a range of issues from maintenance of the work to loaning, and any and all issues the artist or purchaser might want to clarify.

There are now ‘contracts tool-kits’ available for consultation and use on the web. An excellent example of a ‘Direct Sale Agreement’ and a ‘Sale or Return Agreement‘ can be found on the  A-N website.

Alternatively, a license agreement may on some occasions be more appropriate or useful in relation to new media works or commissions, where the installation may be for a specified period of time (i.e. one year, two years, five years etc.) An example would be Susan Collins’ Tate in Space, which Tate have licensed for five years.

Artists Resale Rights
Artists Resale Rights was introduced in Ireland in June 2006 (and February 2006 in the UK). Artists Resale Rights is a new Intellectual Property right for creators of artworks from within the EEA and it applies for the duration that an artwork is in copyright. It entitles the creators of artworks to claim a royalty in the event of re-sale within certain terms and conditions. In Ireland, the Irish Visual Artists Rights Organisation (IVARO) collects and distributes the royalties on behalf of its entitled members. In the UK the Design and Artists Copyright Society (DACS) collects the royalties.

By Tina Fiske
Dr. Tina Fiske is co-director of Bracker Fiske Consultants, a consultancy specialising in the documentation of contemporary artworks. Tina received her PhD from the University of Glasgow, for her thesis on the acquisition and long term care of ‘non-traditional’ contemporary artworks by British public collections. She currently teaches undergraduate and postgraduate courses on ‘Collecting and Conserving Contemporary Art’ at the University of Glasgow, which introduce students to some of the philosophical, historical, and practical issues that attend the collection and conservation of non-traditional contemporary works of art.

Tina has convened several conferences and workshops on issues of preservation in relation to digital and video media: for example, The Preservation of Digital Art (with Erpanet, October 2004) and The Work of Video Art in the Age of Reproduction (with Streetlevel, April 2006), both at the Centre for Contemporary Arts in Glasgow. She has also organised workshops for Visual Artists Ireland (Dublin and Cork, 2006) on issues attending sales and management of new media / video artworks.

www.brackerfiske.com

Tina would like to acknowledge the advice and help of the following people: Alison Bracker, Clare Mitchell, Paul Cameron, Russell Henderson, Jon Mack, Susan Collins, Jon Thomson, and others.