In this article, Noel Kelly, CEO Visual Artists Ireland, discusses VAI’s current experience of artists not being paid, or whose work has gone missing with some best practice tips on how to avoid this.
The business arrangements between artist and gallery have traditionally been based around honour; a handshake of mutual trust and respect. This system has worked to the benefit of both parties, apparently saving artists from mountains of contractual administration and legal paperwork, and allowing them to progress with their creative work, safe in the knowledge that the gallery/artist relationship is healthy and working to the benefit of all.
However, Visual Artists Ireland has seen an increase in this practice being taken advantage of by a small number of places that fail to follow sound business practices that they see as unnecessary within a sector based upon trust.
Cases of non-payment and works being mislaid are a constant complaint to Visual Artists Ireland’s offices. We receive regular telephone calls and emails from artists in similar situations. On most occasions the artist contacting us will know of fellow gallery artists who have been treated in the same way, but this does not solve the sense of helplessness that can set in when a relationship of trust goes sour.
Of course, we must add very strongly that this is not with every gallery. In fact, if we look at the gallery sector as a whole, it is a small number of galleries and individuals that are acting in this way. For some, it comes from a negative economy or from a change in personal circumstances, but it has to be said that in a lot of cases it is comes from way before the downturn and may be seen as an indication of bad management and a lack of understanding of the art market place and how to work with artists.
Our concern in Visual Artists Ireland about this growing situation has led to a series of discussions with artists and galleries to understand the reality. The following is a brief summary of our findings.
The first points that we must understand are that there are many people in the commercial and not for profit sector today that are working hard to promote the work of visual artists in a professional and caring manner. There are also others who have set up art sales as either a hobby or as an idea that came to them in a sudden moment of clarity but without any research or knowledge of what is required for such a business. The symptoms are common: a lack of payment, not returning telephone calls, accusation and counter-accusation, works missing or damaged, or unable to return work to artists upon request. As we deal with this situation on such a regular basis, we have a set of guidelines that we offer to artists. Part of these we now offer here.
The idea of showing and selling with a gallery appears to be the ideal thing; bringing with it that sense of achievement and pride that the public are going to get a chance to see and perhaps buy. Indeed, first conversations open up new ideas and provide support in terms of exploration and realization of different projects. This looks like it is going to be a long-term relationship between two equal parties; and let’s add that in most cases it is… Therefore, our first piece of advice is
Stop, think, and do some research.
Who is the gallery that has approached you, or that you have chosen to give work to? A very simple step that is often ignored is the investigation of who else is being shown by that gallery. As the Irish art world is a relatively small group of people who are all very well interconnected, it is a simple task to look at the other artists and find one or two to approach and ask for their impression and experience of working with the gallery. Does the gallery achieve sales? What are the terms that the gallery offers to artists? What is the experience of other artists working with the gallery in terms of support, payments, and exhibition opportunities?
There may be a sense of urgency in terms of agreeing to give work to a gallery, but instead of an instant yes, we recommend offering the qualified yes, and then taking time to do the above research. We advise artists to make sure that they understand what they are looking for when they are providing work to be shown and/or sold, and with full knowledge then decide if the gallery team are people with which they would like to work.
What are the terms of your contract?
Our first question to artists contacting us is to ask if they have a contract, a letter of understanding, or anything in writing. Unfortunately, for the most part, there is rarely anything in place. However, it is easy for artists to remedy this situation and when an agreement has been reached with the gallery, any terms and conditions should be documented back to the gallery in written form. We also strongly recommend that all work handed over to the gallery is accompanied by a letter of consignment, including photo documentation of the work. In this letter, the artist should outline the work and the condition in which it is being provided, the period of the consignment, reproduction conditions, and clearly state that ownership of the works being consigned does not pass to the gallerist or buyer until the artist has received full payment. Artists may also like to include other aspects such as representing the work in media statements, insurance, etc. Both parties should sign the document before works are handed over. Amongst other things, this will provide documented proof of ownership and the work’s condition at the time of consignment. There may be moments when the person authorized by a gallery is not available to sign such a document, or there may be reluctance to sign. By having nobody available to sign, it opens the potential that the document will never be signed. We suggest very strongly that reluctance should be a sign of problems ahead.
Keep updated on where your unsold work is
Taking a small lesson from stock taking in the commercial world, it is wise to check with a gallery on a regular basis (every 6 or 12 months depending on your understanding of a gallery’s turnover and based on your level of trust) about the status of the work they are holding on your behalf. When work is delivered send two copies of a signed inventory that is based on what has been consigned and not reported as sold and request that they provide a signed copy back by return. If they don’t do this, or refuse to do it, then perhaps it is time to consider asking them to return all artwork to you within a reasonable length of time (e.g. two weeks).
Building and managing the relationship.
This is where the confidence in a relationship comes into play. Building a working relationship involves open and clear communications. We find that if, for good solid reasons, the gallery may experience cash flow problems, the relationship will allow an artist to have continued confidence in the business partnership and will allow for solid negotiations to take place.
In some of the cases that we see, we find that once good relations become sour when communications either stop, or in extreme cases become abusive. Visual Artists Ireland always recommends trying to work through issues when there has been a good relationship. We offer to mediate and to build a mutually agreed plan for working out problems that have appeared. But when the relationship has soured and turned into an abusive and accusation filled battle, we find that for the most part the only area of recourse is through what can become, in a severe case, a prolonged legal-based battle.
But, what happens if this all goes wrong?
Let’s start with the premise that most galleries want to pay their artists, maintain their good reputations, and to keep everybody happy. We keep this as a given when starting to look at cases. Therefore, our first recommendation is:
Making contact with a gallery to look at the status of work, or looking for payment needs to be kept on a business basis. If started with a telephone call, we always recommend a follow up at all times with a confirmation email or letter. The ideal situation is to receive payment in full, but we also recommend looking to setting up a schedule of payments from the gallery.
The above is when working in a clear professional environment. Unfortunately this is not always the case, and as has been experienced by many artists, deadlines for payments are consistently missed, and dates and times are ignored, leaving artists both out of pocket and without work.
What to do next is more complex and we usually deal with it on a case-by-case basis. Our first question is always to ask what documentation an artist has. The first task that we set an artist is to outline a chronology of the relationship, showing works provided, and copying emails and letters that have been exchanged. This is usually an exhaustive task, but in this documentation lie the future solutions. Ideally, a contract or letter of consignment is in place. If not, and as can be seen on our info~pool site, Ireland places a lot of emphasis on verbal contracts especially in cases where there is evidence of other parties being subjected to the same treatment.
Once this chronology and gathering of communications is in place, the next task is to identify if there is a deliberate deception in place. If so, this becomes a serious case that is potentially understood to be fraud; the obtaining of work under false pretenses. This becomes a matter for a police investigation through the Special Branch. This is the extreme, but from recommendations from the Harcourt Street Gardaí anti-racketeering office, taking the above documentation to a local special branch officer may result in a criminal investigation.
More likely, there is no fraud, but it will be a matter of mismanagement. In this case, the first point of reference is to find out what is the status of the work involved. If an artist has been told that it has been sold, or the work is not available for return to the artist, the next step is for the artist to raise an invoice for the full amount due to them, clearly indicating terms and conditions for payment.
As this is a commercial transaction, it is worth noting that as and from the 1st January 2012, the late payment interest rate is 8% per annum (that is based on the ECB rate of 1% plus the margin of 7%). That rate equates to a daily rate of 0.022%. Penalty interest due for late payments should be calculated on a daily basis. (http://www.djei.ie/enterprise/smes/latepay.htm)
If a gallery is paid either in full or has agreed to be paid through instalments, but the artist has not been paid, the artist should contact the gallery requiring payment or to have the work returned immediately under the terms of their letters of consignment and the terms and conditions of their invoices. It will be a business decision between the gallery and the artist on how to deal with unpaid for work. However, going back to the original idea of the letter of consignment, the work has been offered to the gallery as the artist’s agent. This means that there is no transfer of ownership until the item has been paid for in full. Some artists will know to whom the work has been sold. Not many galleries relish their reputations been sullied by the knowledge that an artist or their agent may appear at a client’s door looking for the return of their work. This of course should be managed in a clear and legal manner.
The final destination, when all other avenues fail, is the legal route. Depending on individual situations, it may be possible to turn the matter over to an official debt collector, or the matter may require taking specific legal advice and end up in courts.
For the most part, artists are reluctant to go that final step, and we recommend it only after an artist has taken advice based on all of the evidence gathered as outlined above. But, it must be said, that the initial steps that we have outlined in terms of prevention may go a long way to avoid this.
If we are to see ourselves as professionals in our field, then the first step is to ensure that we protect ourselves at all stages of our careers. Our message is: Think before you say yes to any relationship; Document all aspects of the relationship and agreements; Communicate openly, clearly and in a businesslike manner – always confirming in writing or by email any decisions made; Be consistent and open with communications; and Act in a clear and professional manner at all times.
Finally, remember, you’re not alone in this and if you need any further advice Visual Artists Ireland is available for confidential chats and advice.