Part II of a two-part series excerpted from Townsend’s new book, Making and Marketing Better Work.
Should I have a contract with every gallery that I work with?
Typically, yes. There are exceptions. Some galleries take pride in having such good artist relations that they do not use a written contract. Do not offend these gallery owners by insisting on a contract. Tactfully ask them for the names of a few artists they represent with whom you can speak. After carefully checking their references, as long as you get a good response from the artists with whom you speak, feel free to proceed in the relationship. It’s actually a pretty safe bet. If a gallery operates on the basis of a verbal agreement, and has ongoing representation of well-known, significant artists, they must be taking pretty good care of them.
Legal leverage is only one of the reasons to have a contract. Just as importantly, it spells out the terms of the working relationship to prevent misunderstanding and augmenting the memories of the concerned parties. It is much more typical for problems to occur as a result of miscommunication than malice.
What are the points that should be covered in a contract between an artist and a gallery? Should I have them sign my contract or should I sign theirs? What if there’s something in there that I don’t like or that doesn’t work for me?
* Terms, meaning division of the retail value of the work. Typically 50/50. Some non-profits offer 55/45, or 60/40 - in favor of the artist. Take it. Some galleries will ask for more than 50 percent. Don’t give it to them. Essential.
* Statement of consignment. This states that the work has been consigned by the artist to the gallery. The artist owns the work until it sells, and the gallery is responsible to the artist for the work until it sells or is returned. Essential.
* Artist ownership of copyright of artwork. This states that the artist owns the copyrights to the work under discussion by virtue of having created it. This protects the gallery from unknowingly representing or promoting work that has been plagiarized. Optional.
* Inventory list. Number of pieces, retail price, title, description and size. Optional.
* Period of contract. Typically one year. This gives both the artist and the gallery a committed time period to justify mutual investment in the working relationship. It also gives an escape valve for either party to decide that the relationship is not working. Essential.
* Length of exhibition. Specifies length of show, duration to which artist is committed to leaving work in gallery. Extensions may be agreed to upon mutual consent. Essential.
* Required date of receipt of artwork by gallery. This ensures that the artist will get the work to the gallery in time for the exhibition, in which the gallery has made a substantial investment. This is one of the most common problems that galleries have with artists. Be professional. Plan your work for a show far enough in advance to allow for problems with new work, such as shooting images of work before it goes out, and packing it properly. Essential.
* Payment schedule. The rare gallery will pay for the sale of a piece immediately. More typically, payment will be 30-45 days from date of sale. Be sure that the contract specifies the mutually agreed payment schedule. Essential.
* Artist determines selling price of consignment work. This is the only situation in which it is typical for the artist to control the retail price on work in a gallery. It is usual for the artist to set the retail price on work consigned to a gallery. Specific reference to this arrangement in the contract is Optional.
* Discount schedule. Many galleries would like to have the ability to offer a discount on work to assist in closing sales. Ten percent is common in the area of contemporary glass art. Agree or disagree and so state in the contract. Any discount over what is in the contract comes out of the revenue earmarked for the gallery. Essential.
* Shipping. Artist is responsible for getting the work safely to the gallery. Gallery is responsible for returning or forwarding the work at the end of the exhibition or contract period. Return insured shipping is at gallery expense. Gallery to pay artist for breakage in return shipping, even if insurance does not honor the claim. This typically would be due to poor packing. Some galleries will specify that the artist is responsible for shipping both ways. Cross it out and change it. Essential.
* Gallery is responsible for loss or damage of work while in its possession. There is no such thing as ‘normal wear and tear’. Just as you would never send out a piece with a crack, chip or scratch, neither should you accept one in return. The gallery is responsible for your work while in its care. Period. Do not work with anyone who does not accept this basic responsibility. Essential.
* Notification period needed prior to return of work. You may have agreed to leave work with a gallery for an extended period of time. You may have found a buyer elsewhere, and need the gallery to send the work to the buyer. Give them a week or two, depending on their situation, to get it sent out. Be as considerate of them as you want them to be of you. Optional.
* Exclusivity terms and area. This may be as simple as defining a geographic area or as complex as requiring annual sales volume. Optional.
* Fee for commission. Commissions for special pieces often come to an artist through a representing gallery.
The gallery should receive payment for this service.
Simple commission - If the commission is for a piece very similar to a piece on display in the gallery, in a different color, for example - gallery receives the full 50 percent.
Complex commission - If the commission requires meetings or telephone calls directly between artist and client, development of a model, design time - gallery receives a 10 percent finder’s fee, or other agreed percentage.
In the second case, the complex commission, the gallery was not required to display, maintain or be responsible for the work. Sale of the piece was actually consummated by the artist through the development and design process. Optional.
* Artist to supply promotional materials and images. These are elements that the gallery needs in order to fulfill its commitments to the artist. Failure to provide these in a timely fashion severely handicaps the entire endeavor. Essential.
* Specific expenses gallery will assume: Announcements, mailing expenses, advertising, and reception expenses. Optional.
Although all the terms of a contract are technically negotiable, find a reasonable norm that works for you, and only question those items that fall outside it. If you have a problem with some aspect of the contract, call the gallery owner and talk to him or her about it. After making a verbal agreement, cross out the objectionable item, write in the new one, initial and date it in ink.
If the gallery owner will not agree to the change, you’ll need to decide if that item is actually a make or break issue for you. Be polite, whatever you decide. Explain courteously what hardship it causes you and thank them for their interest in your work. Don’t burn any bridges. There may be a change in your circumstances or theirs in the future. Your paths will probably cross again.
Generally, if you are approaching a gallery to represent you, they hold the advantage in the negotiation. If they contact you in an effort to obtain the right to represent your work, you have the advantage.
Most galleries have their own contract, and would rather use their own than the artist’s. Read it thoroughly. It should not be so complex as to be difficult to understand, but you might want to have your attorney review the first several contracts you deal with. After a little practice, the key points will jump right out at you, enabling you to deal with a new contract quickly and as a matter of course. Keep your contracts together in a file or a notebook for easy reference.
Being clear about the terms of a contract in the beginning does not necessarily imply that one party or the other is trying to get the most for themselves. A contract is, in an abbreviated way, a business plan. It protects each party from failure due to lack of follow-through on the part of their partner. It clarifies the terms of a working relationship, so that each party is aware of his or her duties and obligations. Upon fulfilling them, the relationship will succeed.
What should I do if a gallery asks me to share the cost of advertising?
Generally, a gallery should be paying for any advertising of regular shows and exhibitions, and will have an established pattern for doing so. If you are having a solo exhibition, and you want a larger ad than the gallery typically uses, then it is reasonable for you to share the cost. You should not pay for postcards or mailing costs associated with a show at the gallery.
What is co-op advertising, and how do I arrange it?
Co-operative advertising is when images of an artist’s work are shown in a display ad with a list of galleries who represent that work. A co-op ad is targeted toward the retail customer and must be placed in a publication that retail customers read. The artist’s contact information should not be shown, since the purpose of the ad is to refer customers to the galleries that carry the work. The cost of the ad is typically divided between the galleries whose contact information is shown. With multiple galleries listed, it is typical for the artist or the publication to do the layout for the ad.
It is possible for the magazine to call a list of galleries supplied by the artist to invite participation in the ad. Sometimes, due to the personal relationships between the artist and the galleries, the artist will prefer to make the calls.
The benefit to the artist is low-cost or free advertising on a scale that many artists’ budgets do not permit. Full-page images of work, headed by the artist’s name, in national or international publications are an effective way to familiarize the market with the current work, as well as the identity, of the artist.
The benefit to the galleries, especially those who participate on a continuous basis, is to be associated in the psyche of the market with that artist. The galleries will occasionally gain a direct sale from such a co-operative ad, but that should be viewed as a secondary rather than a primary goal. Some galleries view the benefit to themselves to be an enhanced relationship with the artist, through the relatively inexpensive cost of supporting the artist’s exposure.
The cost of co-op advertising between an artist and only one gallery is more usually divided equally between them. Who does the layout? What images will be used? You will have to decide on a case by case basis.
Co-operative advertising is an effective way for both artist and gallery to obtain national exposure at extremely reduced cost. It is most commonly found in established artist/gallery relationships in which the parties share a long-term commitment to a future of working together.
In what ways can my website enhance or damage my relationships with my galleries?
Galleries take a dim view when artists sell directly to collectors. If you plan to sell primarily through galleries, do not sell to collectors on your website or anywhere else.
Your website can be a powerful tool by which you can refer customers to your galleries. This costs you little or nothing, and will greatly enhance your working relationship with your galleries. The gallery can refer their customers to your website to see new work, in full confidence that you will honor the relationship. This type of gallery support is one of the types of elements that will swing a gallery towards one artist over another.
The artist’s name and website address can be prominently listed in national co-operative advertising, making the full body of the artist’s work available through the participating galleries, online.
You will be faced with the opportunity to make large sales directly to collectors for retail prices. You will do well to decide in advance what your response will be. You must weigh the dollars offered to you in that transaction against the lifetime value of the working relationship of the gallery that you should send the sale to (not to mention your own sense of honor and integrity.)
One suggestion given me by a marketing professor was to make the retail sale, and then send the appropriate gallery a check for their half. That sounds good on paper, but there are many problems.
* The customer’s check bounces, and you become a collection agency.
* The customer doesn’t like the piece when they receive it, and it breaks when they send it back.
* The collector tells friends that they bought directly from you, and even though you are paying the gallery, this damages your reputation with other galleries.
* You are doing the work of the gallery, and it bothers you to pay them for doing nothing. Decide if you are a retailer, or not.
Collectors are neither uninformed or stupid. They are typically well-informed, intelligent people who know how to make (and save) a dollar. One reason that you will get requests to sell directly to collectors on the website is that they know that you sell it to the gallery for half what they pay. They figure that if they offer you more than you normally get, they can still net a sizable savings.
Don’t do business with people like that. Refer all internet requests to buy your work to the closest gallery that carries that type of work.
The gallery will thank you whether the sale is consummated or not, and it will deepen the level of mutual respect between you and the gallery.
This is called quid pro quo. I do something for you, and you do something for me. Don’t be a mercenary about it, but don’t give yourself away for nothing either. Too many artists undervalue their time and do not consider themselves as equal partners with their galleries. You are. Artists and galleries depend upon each other, and are useless without each other.
Remember, when a gallery asks for something that you can do, say “yes’ right away, with enthusiasm. Your attitude towards what can be called ‘customer service’, will be a large factor in the ongoing success of your working relationships with your galleries.
Make your request for a quid pro quo lighthearted but distinct. Get a definite commitment in response. If there appears to be no appropriate reciprocal service that you can request, file it in the back of your mind, and feel free to ask for something, at some point in the future.
A long series of unreciprocated services will lead to resentment on the part of the giver and a cavalier or guilty attitude on the part of the receiver. This imbalance will lead to the eventual decay of the relationship. Quid pro quo keeps things on a relatively even keel, ensuring that both parties give as good as they get.
What do I do about broken pieces?
I recommend a no-fault repair policy. It depends more on the feasibility and cost to repair them than in how they were broken. As much as possible, try to do repairs at no charge. This is an important factor in convincing galleries and collectors that your work is a safe investment. Knowing that you stand behind your work in this way will give them confidence to represent and promote you and your pieces.
If a piece has been utterly destroyed, or is damaged beyond reasonable repair, you’ll have to decide how to proceed. If you charge them, they will certainly pay. If you do not charge them, especially when a significant amount of work is involved, you will bind them to you. How can you measure the value of the kind of loyalty and commitment that you thus engender? A collector whose piece has been repaired or replaced at no charge will often feel moved to do something in return. The most obvious avenue open to them is to acquire another piece.
They will certainly become your most devoted ombudsmen, speaking volumes on your behalf to others in a position to collect your work.
In short, if you allow them to discharge their obligation to you through the payment of money, that’s what you’ll get, and that’s all you’ll get. If you refuse to accept payment in money, they’ll often seek out other ways to compensate you. If however, you have come to know through your own experience that the free repair will not be valued, by all means charge for it.
This accommodating repair policy is in reference to work sold to collectors or galleries. It does not generally apply to work on consignment. That could ultimately lead to carelessness on the part of the gallery and staff.
What should my policies be?
A policy is generally a description of the standard operating procedures that you use, and will sometimes detail the basis on which that procedure may be changed. Each policy exists for a specific reason. You need to have a policy, or pre-stated position, regarding the essential aspects of your working relationship with a gallery. Many of them are covered within the ‘contract’ and ‘exclusivity’ sections of this chapter.
* Policy: 30-day payment.
Reason: Artist needs to stay in business.
Basis for Change: Chronic late payment.
Change: Account will pay COD.
* Policy: Minimum opening order (for outright sales) $500.
Reason: Without adequate selection, work will not sell well.
Basis for Change: None.
* Policy: No shipment of additional work until previous open invoices are paid.
Reason: Keep accounts from accumulating large unpaid balance.
Basis for Change: None.
* Policy: Repairs will be processed at no charge or nominal fee.
Reason: Enhance customer relations.
Basis for Change: Careless, repetitive breakage by gallery or staff.
Change: Charge fully for time and materials.
* Policy: Open exchange on unsold goods.
Reason: Develop and support customer confidence in work.
Basis for Change: Casual, frequent exchanges.
Change: Discontinue open exchange privilege with gallery.
* Policy: Exclusivity granted in geographic area.
Reason: Encourage sales and promotion of work, while protecting gallery investment.
Basis for Change: Gallery is unable to meet projected annual sales justifying exclusivity.
Change: Evaluate size of area, projected figures, and type of work covered by agreement. Reconfigure as appropriate.
* Policy: All prices are subject to change without notice.
Reason: This frees the artist from the costly job of notifying accounts of every change in prices.
Basis for Change: Consideration for special accounts may suggest that informing them of an upcoming price change would be helpful to the working relationship.
Change: Call, allowing them to make a final order at old prices.
Determine which issues are critical and decide what your policies will be. You do not have to lay it all out on paper to give to your accounts. This is to clarify your positions for yourself and your staff. This way, when one of these issues comes up, you and your staff will be able to approach it consistently and objectively. If you can honestly say ‘It is our policy to…’, you will effectively eliminate many hours of discussion and argument. This makes the consequence of the policy not a personal criticism, but a business matter to be dealt with in a businesslike way.
Milon Townsend has been making and selling his work since 1974. His career has ranged from retail craft shows to solo exhibitions in fine galleries. He currently sells his work and that of his studio to over 300 stores and galleries throughout America and the world. After many years in New York City, where his company had grown a little larger than he liked, he moved to his hometown in upstate New York. He currently lives and works just outside a small village near Rochester, with his wife Kiyoko and his son
Timo. He works with a loosely configured team of skilled glass artists, who are an integral part of the creation of his pieces. This book, “Making and Marketing Better Work”, specifically addresses the issues and concerns raised by artists who have achieved some level of success, who know that they can accomplish more, and are looking for a way of upgrading their work and/or methods of working. It, along with his “Advanced
Flameworking” book, are now available for purchase from the publisher, Blue Moon Press. Call toll free 1-866-564-4848 or online at
www.thebluemoonpress.com.
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