In this new series appearing monthly, we discuss the basic legal aspects of working as an artist, freelancer or business owner in the culture sector. It has been drafted exclusively for Contemporary Lynx by Oskar Roesler – founder of the Roesler Group, which offers tailor-made legal advice to clients including artists, collectors, galleries and foundations. Their lawyers have years of experience in corporate law, copyright law and trade agreements pertaining to art dealership.
After we clearly define the parties within our agreement and select the governing law and the type of agreement, our next step is to draw up provisions which would best suit our purpose.
Hungry for more?The first clause at the beginning of each agreement includes the main subject matter of agreement. As I wrote in my previous articles, the subject matter of agreement is a decisive factor in determining the generally applicable law governing our legal relationship. Firstly, we can define the main subject matter of agreement in general terms, and supplement the agreement by adding a list of specific activities comprising the subject matter of the agreement.
If our intention is to enter into a legal relationship under a consignment contract, a general definition of the subject-matter may be as follows:
- Regarding Polish law:
For a consideration specified in Clause [●] herein, the Gallery, within the scope of its business activities, undertakes to sell the works listed in Schedule No. 1 to this Contract (hereinafter “the Works of Art”) for the Artist’s account, and on the Gallery’s own behalf.
- Under the laws of the State of New York, or laws applicable in England and Wales, a consignment contract also has provisions typical for agency contracts. In such an event, an example subject matter of agreement might be defined as follows:
- The Artist shall consign to the Gallery, and the Gallery shall accept consignment of, all works of art described in Schedule A of this Agreement (hereinafter the “Works of Art”) for the full term of this Agreement.
- The Artist appoints and establishes the Gallery as an agent for the purpose of exhibition and sale of the consigned Works of Art.
Introducing provisions to the wording presented above and applying Polish legal provisions as governing law, or the laws of the State of New York, we should bear in mind that in addition to our contractual provisions, the provisions of the Polish Civil Code, in a part pertaining to commissioned sale agreements, or Article 12 of the Arts and Cultural Affairs Law (ACA), apply respectively.
Part I — Designating the Parties of an Agreement and Its Form.
Entering into collaboration with a new art gallery is a moment worth cherishing and this remains so at any stage of your career. Yet overwhelming euphoria, there are certain things you should take care of first: remember to keep a cool head and lay the groundwork for the path you are to follow. In the upcoming articles, we outline the proper structure of an agreement. This will ensure both parties draw equal benefits from their collaboration.
Another type of agreement we can use is an agency contract, where the subject matter can be defined in the following way:
- Regarding Polish law:
For a consideration specified in Clause [●] herein, the Gallery undertakes to act as an agent on a permanent basis in any activities involving the conclusion of agreements between the Artist and the buyers of works of art listed in Schedule No. 1 hereto (hereinafter “the Works of Art”), or
For a consideration specified in Clause [●] herein, the Gallery undertakes to enter into agreements with the buyers of works of art listed in Schedule No. 1 to this Contract (hereinafter “the Works of Art”) on behalf of the Artist.
- Regarding the laws of the State of New York:
- The Artist appoints and establishes the Gallery as an agent for the purpose of sale of works of art described in Schedule A of this Agreement (hereinafter the “Works of Art”), for the full term of this Agreement.
- The Gallery hereby accepts such appointment and agrees to carry out the services and assume its obligations contained in this Agreement.
- Regarding Swiss law:
The law of Switzerland provides for several types of agency contracts. From our perspective, it is worth mentioning the simple agency contract, under which “the agent undertakes to conduct certain business or provide certain services in accordance with the terms of the contrac”. In particular, it includes the authority to carry out such transactions as are required for performance of the contract; and a brokerage contract under which “the broker is instructed to alert the principal to an opportunity to conclude a contract or to facilitate the conclusion of a contract in exchange for a fee.” In any matters not regulated in specific laws governing brokerage contracts, the provisions on simple agency contracts may be applied. The following provisions can be taken into account while drawing up contracts:
Regarding simple agency contracts:
- The Artist appoints and establishes the Gallery as an agent for the purpose of sale of works of art described in Schedule A of this Agreement (hereinafter the “Works of Art”), for the full term of this Agreement.
- The Gallery hereby accepts such appointment and agrees to carry out the services and assume its obligations contained in this Agreement.
In the last instalment, we specified the types of agreements and related statements recommended by lawyers. Also, we described how to designate an agreement’s parties properly and why this aspect is important. Another step in laying the foundations for a collaboration between an artist and gallery is designating the law applicable to our legal relation and deciding on the type of agreement we want to sign.
How to sign an agreement if an artist and a gallery are located in two different countries?
As regards brokerage contracts:
- The Artist appoints and establishes the Gallery as a broker for the purpose of facilitation of the conclusion of sale of work of art described in Schedule A of this Agreement (hereinafter the “Works of Art”) and/or informing the Artist on opportunities to sell the Works of Art, for the full term of this Agreement.
- The Gallery hereby accepts such appointment and agrees to inform the Artist of opportunities to sell the Works of Art and/or facilitate the conclusion of a sale of Works of Art.
As you can see, there are numerous possibilities to develop legal relationships and using any of the above provisions will allow us to make our cooperation official, if only to a minimal extent. If any doubts occur regarding matters not provided for in such contracts, you will be able to refer to general laws applicable in jurisdictions indicated in your agreement. Of course, we recommend that you add further specific details. Another provision which is essential to both parties is the one governing the issue of remuneration. In our next article, we will present suggestions for provisions governing this issue, together with payment methods and deadlines.
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