A wealthy patron hires a conceptual, modern artist to create an avant-garde, memorable work of art to display at the center of his collection. The patron pays the artist $150,000 for the artwork to be created. Some months later the artist presents the patron with a six pack of Coors covered in lipstick and bacon grease. Everyone wins?
In this anatomy of a Commission Agreement, we explore the relationship between artists and their patrons.
It is an interesting one often fraught with potential conflicts and problems.
There is a natural tension between artists and their patrons which is highlighted by the recent case of Bert Kreuk (a patron) versus Danh Vo (an artist) (see Kreuk v. Danh Vo).
Artists, on the one hand, are concerned about artistic freedom and expression, creativity and inspiration (and hopefully making some money). Patrons, on the other hand, are usually focused more on the return on their investment (not that there is anything wrong with that) and receiving a piece of art that meets their expectations and tastes.
The importance of a Commission Agreement
Because of this natural tension and the fluid and subjective nature of the creative process, it is important for artists and patrons to have clear, complete and understandable commission agreements. The commission agreement should address the parties’ respective expectations, rights and obligations. No one wants unpleasant surprises for either party during the creative process and at its conclusion when the commissioned artwork is delivered.
There is no magic formula in Art Law for a commission agreement.
The agreement itself can be as unique as the parties involved or the artwork(s) resulting from them.
However, there are some common terms and conditions that should be addressed in most Commission Agreements.
- At least a basic description of what is to be created, including:
- The expected medium or media to be used to create the artwork (e., is it going to be a steel sculpture or an oil painting on canvas, etc.?); and
- The approximate size/dimensions of the artwork.
- A deadline for completion and/or delivery of the artwork (and whether or not time is of the essence with regard to such delivery).
- An agreed approval process for sketches, models and the like and any other relevant creative benchmarks (including a provision for who owns such sketches, etc.).
- Obligations related to the cost and physical creation of the artwork, including:
- Which party will furnish and/or pay for the materials to be used in the artwork; and
- Which party is responsible for necessary fabrication, shipping, assembly or installation of the artwork and/or the cost(s) thereof.
- An agreed delivery location and/or an installation site location, if applicable.
- Who is responsible for ensuring the artwork (and materials) during creation, shipping and installation of the artwork?
- The artist’s and patron’s respective rights and obligations for an inspection of the work-in-progress by the patron.
- Any representations and warranties by the artist as to the artwork’s originality, non-infringement of third-party rights, workmanship, and clear and unencumbered title.
- The agreed price for the artwork and payment schedule, if any.
- Ownership and control of the copyrights for the completed artwork and/or any derivative and/or related works created in connection with the commissioned artwork.
- Whether or not the artist waives or retains any moral rights with respect to the artwork ultimately created.
- What happens if the artist dies or becomes disabled prior to completion of work?
- Patron’s remedies for artist’s failure to complete the work for reasons other than death or disability.
- Patron’s satisfaction and acceptance of the artwork ultimately created and delivered/installed (i.e., a “money back guarantee”).
- And, never overlook taxes (i.e., sales tax, etc.).
This list is by no means exhaustive or exclusive.
These commission agreements, like the artworks they cover, may require great patience, creativity and collaboration to craft. But, in the end, a clear, complete and understandable agreement will benefit both patron and artist and lead to a more collaborative creative endeavor (even before any artwork is created).