Standards and Guidelines
Guidelines Adopted by CAA Regarding the Hiring by Museums of Guest Curators, Exhibitor/Artists, and Catalogue Essayists as Outside Contractors
Unanimously approved by the CAA Board of Directors on October 27, 2002.
Introduction
The College Art Association is the leading professional organization of visual artists and art historians and many museum professionals. Having considered views from all three groups, CAA offers the following guidelines for consideration in establishing arrangements between museums and three categories of outside professionals: guest curators, exhibitor/artists, and catalogue essayists.
These guidelines are divided into two parts. First, a summary checklist identifies the subjects that the parties to such arrangements may wish to take into account in their negotiations. Second, a paper describes in greater detail the specific matters addressed in the summary checklist.
Summary Checklist of Issues for Consideration in Contract Discussions between Museums and Guest Curators, Exhibitor/Artists, and Catalogue Essayists
In the relations between a museum and an outside contractor, such as a guest curator, an exhibitor/artist, or a catalogue essayist, a contract that establishes the rights and responsibilities of both parties is essential to avoid misunderstandings and conflicts. Where they collaborate on a project, a museum and an outside contractor each make substantial contributions based on their respective strengths.
A guest curator, exhibitor/artist, or essayist may bring to a project valuable ideas as well as extensive knowledge of or contacts in a field. The artistic and intellectual contribution of an outside contractor may be far in excess of the time that is spent actually working on a specific project with a museum or of the compensation paid for the work itself. A museum often has very substantial resources, experience, and expertise in mounting an exhibition, including making the arrangements for the loan of works and for their installation. A museum is essential in bringing to an exhibition the broader public of the museum’s membership and the larger community. When an outside contractor and a museum work together in developing an exhibition, they are engaged in a collaborative process. In establishing their relationship and in carrying out their responsibilities, the outside contractor and the museum each ought to recognize the rights, responsibilities and needs of the other. Where possible, a contract could be drawn up at the outset, or as soon as is feasible, before any collaborative work beyond the initial proposal is undertaken. Although, given the inevitably dynamic nature of the enterprise, the parties should recognize that it may not be feasible to address every conceivable circumstance in writing beforehand and that the agreement should permit the parties to act flexibly in allocating responsibilities between them. Where there is a letter describing the arrangement, changes to understandings could be set out in an amendment to that letter.
The items listed below are possible subjects for discussion between a museum and its outside contractors. Contracts need not necessarily address every one of these subjects. The extent to which contracts address such matters will vary depending on the scope of the exhibition or catalogue, the nature of the services to be performed, and other factors. Nonetheless, in the course of their negotiations, museums and outside contractors should consider whether and to what extent the following subjects ought to be covered in their contracts:
Checklist I. For Guest Curator–Museum Contracts
II. For Exhibitor/Artist–Museum Contracts
III. For Catalogue Essayist–Museum/Publisher Contracts1. Allocation of Responsibilities 1.1 Work 1.1.1 Who writes and has final edit of preliminary texts
--
letters to lenders-- curatorial statements -- grant proposals -- press releases 1.1.2 List of objects --
who prepares and who makes final decisions regarding loan list -- who decides on agreed-to obligations with regard to obtaining objects 1.1.3 Research materials -- who pays for and owns research photographs -- who pays for and owns other materials acquired in research 1.1.4 Who writes, has final edit of and owns copyright in publication texts (see Section III, below) -- brochures -- label/wall copy -- educational materials (audio, film, other media, etc.) -- catalogue texts 1.1.5 Who acquires publishable photographs and rights for reproduction, and who pays for them 1.1.6 Warranties as to originality (or proper crediting) of work submitted 1.2 Who has final authority of exhibition design and role of guest curator 1.3 Schedule for production of work 1.4 Responsibilities at time of opening 1.4.1 Press tours, lectures 1.5 Responsibilities after opening 1.5.1 Symposia or other educational activities 2. Fundamental Mechanics of the Working Relationship 2.1 Staff support for guest curator 2.2 Other support for guest curator 2.2.1 Office space 2.2.2 Personal computer, photocopying, telephone, facsimile 2.2.3 Correspondence 2.2.4 Research support (research assistants, book/photograph acquisition, travel) 2.2.5 Cannot act as a “representative” of museum absent authorization 2.3 Museum contact persons and guest curator’s reporting relationship 2.4 Museum’s obligations regarding safeguarding and insuring guest curator’s belongings 3. Intellectual Property and Approval Rights 3.1 Mutual respect for guest curator’s exhibition concept 3.2 Ownership of guest curator’s work product 3.2.1 Guest curator’s preferred alternative: Ownership remains with curator, with license to museum -- which work product and for which media (see Section III, 2., for catalogue rights; labels/wall copy and brochures may be works-for-hire) -- length of license period -- rights after exhibition 3.2.2 Museum’s preferred alternative: Museum owns work product, as a work-for-hire or by assignment -- license to curator, for certain specified purposes -- which work product (see Section III, 2., for catalogue rights) -- right to pursue infringers 3.2.3 Effect of exhibition cancellation or contract termination -- reversion of ownership rights to curator -- ownership of research notes and other materials -- when does the museum have the right to proceed subsequently with exhibition (e.g., if curator falls ill or is otherwise unable to complete the project) -- right of curator to take project elsewhere -- right of curator to publish catalogue elsewhere 3.3 Consultation and/or right of approval 3.3.1 Rights and responsibilities regarding catalogue (or audio, audiovisual, other media works) -- to alter catalogue text or add/delete essays (with or without author’s permission) -- content of catalogue or other works -- design of catalogue or other works 3.3.2 Rights and responsibilities regarding other materials -- content of labels and brochure -- educational materials -- presentation, installation, and object selection -- press releases 4. Fundraising and Exhibition Tours 4.1 Guest curator’s involvement in fundraising -- to whom -- when -- assistance in grants -- expense reimbursement 4.2 Involvement in writing material for presentation to tour venues -- to which venues -- involvement in presentations themselves -- expense reimbursement 5. Credits 5.1 Materials on which guest curator’s name will appear 5.1.1 Placement, size 5.1.2 Title, description 5.1.3 Right to use guest curator’s name, likeness 5.2 Museum’s credit 5.2.1 Which curators or other personnel 5.2.2 Titles, description 6. Compensation 6.1 Fees for curatorial services 6.1.1 Lump sum for all work/curatorial services 6.1.2 Payment on per diem or per hour basis 6.1.3 Availability of any museum staff benefits 6.2 Timetable for payment 6.2.1 Milestones or benchmarks 6.2.2 Penalties for late delivery 6.3 Payment for catalogue 6.3.1 Flat fee or royalty based on percentage of wholesale price of books sold 6.4 Catalogue 6.4.1 Number of free copies 6.4.2 Specified curator’s discount on purchased copies 6.4.3 Review copies 6.5 Policies on travel and expense authorization and reimbursement 6.5.1 Expenses for research materials 6.5.2 Travel for research/consultation/meetings/opening 6.5.3 For administrative expenses 7. Term and Termination 7.1 Length of contract 7.2 Remedies for breaches 7.2.1 Breach by guest curator (e.g., failure to perform, delays, work unacceptable) -- financial penalties -- termination -- right to mount exhibition 7.2.2 Breach by museum (e.g., project languishes) -- right to terminate -- guest curator’s right to approach other institutions 7.3 Disagreement over catalogue content 7.4 Parties’ respective rights/consequences of termination 7.4.1 Breach 7.4.2 Failure to obtain funding 7.4.3 Other reasons 7.4.4 Consequences of revival 7.4.5 Use of research materials 7.5 Compensation to guest curator if agreement terminated/exhibition canceled 7.5.1 For services/expenses incurred to date 7.5.2 Cancellation fee 7.6 Ownership of residual exhibition materials (e.g., cases, frames, and wall texts) 7.6.1 Right to residual use of research materials by guest curator and/or museum 8. Tour venues 8.1 Museum’s obligation to have tour venues abide by curator-museum contract II. For Exhibitor/Artist–Museum Contracts 1. Contracting 1.1 When to enter into contract 1.1.1 Start of relationship 1.1.2 Causes for termination or cancellation 2. Allocation of Responsibilities 2.1 Artwork to be assembled/created for exhibition 2.2 Schedule for production of artwork 2.2.1 Remedies for delay/right to terminate if artworks not produced on time 2.3 Who controls exhibition design 2.4 Responsibilities at time of opening 2.4.1 Press tours, lectures 2.5 Responsibilities after opening 2.5.1 Lectures 3. Fundamental Mechanics of the Working Relationship 3.1 Staff support for exhibitor/artist 3.2 Other support 3.3 Museum contact person and exhibitor/artist reporting relationship 3.3.1 Policies on expense and travel reimbursement -- for creation of artworks (e.g., raw materials) -- for consultation/meetings -- for ordinary expenses -- for shipping/return of artworks 3.4 Museum’s obligations regarding artworks (e.g., safeguarding, insurance) 3.5 Museum’s obligations regarding mailings and other publicity, length of exhibition, and production of catalogue, brochure, educational materials, and events 4. Ownership of Exhibitor/Artist’s Artwork and Reproduction Rights 4.1 Ownership of original artwork 4.1.1 If Museum acquires artwork after exhibition -- is artwork ever “work-for-hire” -- copyright transfers to museum, with acquisition of original -- copyright remains with exhibitor/artist after acquisition (certain rights licensed to museum) 4.1.2 If exhibitor/artist retains artwork after exhibition -- copyright remains with exhibitor/artist 4.2 Exhibitor/artist’s right to authorize and museum’s right to make reproductions 4.2.1 Which kinds of reproductions (e.g., slides, posters, postcards, digital scans for CD-ROMs or Internet, video, and film) 4.2.2 During exhibition 4.2.3 After exhibition 4.2.4 For educational uses/promotional uses -- which media (e.g., electronic) 4.2.5 For commercial uses -- which media (e.g., electronic) 4.3 Museum’s right to license others to reproduce artwork 4.3.1 Nonexclusive or exclusive license 4.4 Effect of exhibition cancellation or contract termination 4.4.1 All intellectual-property rights revert to exhibitor/artist 4.4.2 Right of exhibitor/artist to take exhibition elsewhere 4.5 Consultation and/or rights of approval 4.5.1 Museum’s rights -- with respect to installation -- not as to contents of artworks 4.5.2 Exhibitor/artist’s rights -- with regard to presentation -- press releases 5. Fundraising and Exhibition Tours 5.1 Involvement of exhibitor/artist in making presentations 5.2 Involvement in installation in tour venues 6. Credits 6.1 Materials on which exhibitor/artist’s name will appear 6.1.1 Placement, size, and relationship to other exhibitor/artists 6.1.2 Use of name, likeness 6.2 Museum credit 6.2.1 Which curators or other personnel 6.2.2 Title, description 7. Compensation 7.1 Fees to be paid to exhibitor/artist 7.1.1 For creation of artwork for an exhibition 7.1.2 For acquisition of artwork postexhibition 7.2 Royalties 7.2.1 For sale/licensing of reproductions -- in-museum sales -- museum poster -- in all media 7.3 Timetable for payment 7.4 Payment of exhibition cancellation fee to exhibitor/artist 7.5 Royalties/compensation to museum for exhibitor/artist’s subsequent sale of exhibited artwork 8. Term and Termination 8.1 Length of contract 8.2 Museum’s rights if exhibitor/artist’s artwork is not acceptable 8.3 Parties’ respective rights to terminate 8.3.1 For breach 8.3.2 Other reasons 8.3.3 Lack of funding 8.4 Ownership of residual materials 8.4.1 Exhibition materials (e.g., cases, frames, and wall texts) 8.4.2 Materials used in artwork installations 8.5 Responsibility, timetable, and cost for postexhibition removal of artwork 9. Tour Venues 9.1 Museum’s obligation to have tour venues abide by exhibitor/artist-museum contract III. For Catalogue Essayist–Museum/Publisher Contracts 1. Elements of Letter Agreement or Contract 1.1 Contents of essay 1.1.1 Subject matter 1.1.2 Length 1.2 Mechanics 1.2.1 Deadline -- consequences of author’s delay in delivery 1.2.2 Fee and payment schedule -- payment if essay not used (specified “kill fee”) 1.2.3 Complementary copies 2. Rights and responsibilities 2.1 Museum/publisher’s right to approve, reject, and/or edit essay, and in what circumstances 2.2 Essayist’s right to approve or be consulted regarding modification 2.3 Ownership of modification 2.4 Acquiring and clearing third-party materials 3. Intellectual Property Rights 3.1 Ownership of essay 3.1.1 Author’s preferred alternative: -- Ownership remains with author, with license to museum/publisher to modify, upon consultation with author -- license to publish first and only in hard-copy catalogue -- license to reprint catalogue -- license to publish catalogue in all media -- license to publish essay apart from catalogue, and in which media 3.1.2 Museum/publisher’s preferred alternative: -- Essay written as a work-for-hire, or ownership transferred by an assignment license back to author for certain specified purposes (e.g., the right to publish everywhere, other than in the catalogue) 4. Credits 4.1 Materials on which essayist’s name will appear 4.2 Placement, size 4.3 Title, description
Guidelines in Establishing Contractual Relations between Museums and Outside Contractors
Introduction
To preserve the goodwill and mutual respect between a museum and an outside contractor, such as a guest curator, an exhibitor/artist or a catalogue essayist, a contract that establishes the rights and responsibilities of both parties is essential in avoiding misunderstandings and conflicts.
In general, the more detailed and specific the contract, the fewer the difficulties that are likely to arise in the preparation for, during the course of, or after an exhibition. Accordingly, parties may wish to pay particular attention to each of the matters discussed below.
Part One: Guest Curators
For purposes of this document, “guest curators” will be understood to include scholars, artists, and writers hired to work as independent contractors to curate an exhibition for a museum. The term includes both the independent scholar and a curator from another institution who is hired to work on his or her own time to curate an exhibition for the contracting museum; the term does not include artists brought in to make presentations of their own work (as to which, see Part Two).
1. Allocation of Responsibilities. The guest curator and the museum should negotiate and specify their respective responsibilities in preparing for and mounting an exhibition. Prior to or in connection with drawing up a contract, these responsibilities should be the subject of discussion among the parties.
In connection with the allocation of responsibilities for developing an exhibition, certain preliminary materials will be required. They are likely to include some or all of the following: (1) drafting and sending out letters to lenders; (2) preparing a curatorial statement, which is a written précis of the idea for the exhibition; (3) grant proposals to help raise funds for the exhibition; and (4) press releases. If the guest curator is expected to help with these materials, then his or her responsibility to do so should be set out in the contract.
Typically, a list of objects to be included in the exhibition is prepared, including those objects to be obtained by loan from other persons or institutions. (Normally, such a loan list includes objects selected for the exhibition [title, medium, size] and the names, addresses, telephone numbers, and other contact information of the owners of the works.) The contract should specify who is responsible for preparing the loan list and which party is responsible for obtaining the rights to exhibit the objects. In some cases, the curators may obtain informal commitments from owners to lend; but, unless specifically authorized to do so by the museum, the guest curator may not purport to represent the museum or make any commitment on behalf of the museum to lenders (also see Section One, 2.2.5). The museum usually is responsible for sending out the loan letters and associated correspondence, but the parties’ respective responsibilities should be specified in the contract.
In connection with the preparation for an exhibition, certain research materials, including photographs, books, research notes, and documents, may be assembled for use by the museum and the curator. The contract may specify whether the guest curator is responsible for assembling and providing such materials, when he or she must do so, and who owns them after the exhibition ends.
In addition to the loan list, the exhibition is likely to require additional materials, such as museum brochures, labels, and wall copy, and educational materials (such as for video or audio guides, or as may be presented in other electronic formats, such as in-house computers or websites). Whether these materials should be prepared, edited, or otherwise reviewed by the guest curator, and the schedule for doing so, should be set out in the contract.
The guest curator is often expected to write text for a catalogue. The contract should set out the parties’ commitments in this respect, potentially including such items as whether the guest curator will be the sole author of that text, whether the catalogue will contain a checklist, the approximate length of the text requested, the approximate number of both color and black-and-white reproductions in the guest curator’s essay and in the catalogue as a whole, and the guest curator’s involvement in other aspects of the publication of the catalogue. Part Three specifically addresses the issues relating to the contribution of an essay to a multiauthored catalogue by individuals who may or may not include the guest curator.
Another important set of responsibilities involves clearing and crediting third parties’ intellectual property rights for quoted material and illustrations for the exhibition (e.g., wall labels or photographs), the accompanying catalogue (e.g., photographs or other illustrations), or educational materials (e.g., brochures, study guides, CD-ROMs, or websites). The contract should specify who is responsible for acquiring photography and rights for reproduction for all of the above. In addition, the museum should ask that the guest curator warrant the originality (or proper crediting) of work produced for or otherwise submitted to the museum for the exhibition.
Typically, the design of the exhibition will be the responsibility of the museum. The extent to which the guest curator will be asked to consult on or otherwise assist in the design should be specified in the contract.
The contract should include a timetable for beginning and completing specific tasks leading up to the opening of the exhibition. The timetable would guide both the guest curator and the museum in fulfilling their respective responsibilities.
If the guest curator is to have any responsibilities at or after the time of the opening, including drafting press releases, giving press tours or lectures, and participating in symposia or other educational activities (such as educating docents), these should also be specified in the agreement.
2. Fundamental Mechanics of the Working Relationship. The guest curator may expect to make reasonable use of the museum’s facilities and staff support to carry out his or her responsibilities. The contract should list what reasonable use includes. Will the guest curator have office space at the museum or be able to make reasonable use of museum computers, photocopy machines, telephones, or facsimile? Will he or she be able to call on museum staff to make photocopies of research materials? To what extent will museum staff be required to handle correspondence? Will the museum pay for postage and courier services for research correspondence? Will the museum be providing research support, such as research assistants, acquisition of books and photographs, or other research materials? It should not be assumed that the museum will supply such support unless its obligation to do so is specified in the contract. Notwithstanding the close working relationship that is likely to develop between the guest curator and the museum, unless specified in the contract or expressly authorized by a senior administrative officer of the museum, the guest curator may not use the museum’s name, present himself or herself as a representative of the museum, or make any commitments on behalf of the museum.
A guest curator will work with all the relevant staff members of the museum when and as needed. The museum should appoint an authorized contact person with whom the guest curator should communicate on all matters regarding the project. It should be the responsibility of this staff person to see that attention is given to internal matters related to the guest curator’s tasks or requests, to coordinate all the various activities related to the project, and to speak officially on behalf of the museum to the guest curator when the need arises (as in authorizing additional reimbursed travel or altering some aspect of the original project calendar or plan). Typically, the in-house project director will be a curator on the regular staff or someone of comparable rank within the institution.
If the guest curator brings objects, personal belongings, or other materials into the museum, the contract should state the extent of the museum’s obligations to safeguard and insure such items. Will such items be stored securely (e.g., in locked filing cabinets or store rooms) or be covered by the museum’s insurance policy covering damage or theft?
3. Ownership of Intellectual Property and Approval Rights. When a guest curator comes to a museum with the idea for an exhibition, it is appropriate for the museum to recognize the curator’s substantial intellectual investment in that idea. Accordingly, the parties’ relationship should be founded on respect for the guest curator’s exhibition concept. If the museum declines to mount an exhibition based on the guest curator’s idea, then the guest curator is, of course, free to approach other institutions. In short, during the period prior to a museum’s agreement to mount an exhibition based on the guest curator’s concept, his or her proprietary interest in that idea must be acknowledged.
The museum, however, also has certain rights once it has agreed to mount and has begun to invest in the exhibition. The parties’ respective ownership rights in the intellectual property created in the course of an exhibition, including the catalogue and other works, should be expressly addressed in the contract.
There are two alternative approaches to the ownership of and rights in the guest curator’s work product in connection with the exhibition. By way of background, under US copyright law, the guest curator would own all rights in any catalogue, wall copy, labels, brochures, or any other textual, graphical, audiovisual or audio work that he or she has authored. The exception to this rule is that where a contract so provides, ownership can be transferred to the museum, either because the materials are expressly described as “works made for hire” (“works-for-hire”) or because ownership is assigned outright by the contract.
The first approach to ownership of intellectual property is that guest curators retain all ownership rights in all work product (i.e., the items described in the preceding paragraph) that they produce for the exhibition. Many guest curators prefer this approach. Even if this approach is adopted by the parties, however, it is usually the case that wall copy, labels and brochures will become the property of museums, whether as works-for-hire or by express assignment. Conversely, the guest curator typically would retain ownership of his or her preliminary research materials, preparatory documents and texts, and initial loan lists.
The second approach to ownership is that materials authored by the guest curator for the exhibition, once the parties have entered into an agreement, are considered works-for-hire for, or are expressly assigned to, museums. Museums usually insist that they own all intellectual property in the work products created for an exhibition because they need the flexibility to adapt and make use of such works (in light of budgetary or other constraints) without having to negotiate further with the curator or so that they have the right to pursue third-party infringers.
As to the first approach, where the museum and the guest curator agree that the guest curator retains all rights in and to the materials he or she has created, it would be necessary for the contract to provide in detail which rights are licensed to the museum, and for which materials, and whether the license is on an exclusive or nonexclusive basis. In addition, the term of the license and the media (printed and/or electronic) in which the guest curator’s works might be reproduced and distributed should be set out. Whether the museum has the right to reproduce and distribute (i.e., reprint on a nonexclusive basis or otherwise) the catalogue or other works, or prepare subsequent editions, both during and after an exhibition, would need to be negotiated.
As to the second approach, where the materials are works-for-hire or all ownership rights are assigned to the museum, the guest curator may well need to have certain rights with respect to his or her work product. To accommodate these needs, the contract should provide for a license back to the guest curator for specified purposes; these might include reproduction and distribution of the works for the guest curator’s personal or professional use, educational purposes, or preparation and distribution of derivative works, such as other written materials (e.g., books or monographs), films, or digital works based upon or incorporating the materials produced for the exhibition itself.
The contract should specify what happens to the intellectual-property rights if the exhibition is canceled or if the contract is, for some other reason, terminated. In that circumstance, either any licenses to the museum might terminate (where the curator had retained all ownership rights) or, in the case of a work-for-hire or assignment, all rights might be assigned back to the curator. Whether the museum would retain any ownership rights in research notes or other materials also could be specified in the contract. In addition, as noted in Part One, Section 7, below, should the curator be unable to complete the project or perform the services contractually required, the museum will want the right to terminate the agreement, but it may, nonetheless, want to proceed with the exhibition; the effects of termination in these circumstances, including ownership of intellectual-property rights, should also be addressed in the contract.
The contract could also provide that, upon termination, the curator would have the right to take the project to another institution. In addition, it could expressly address the parties’ respective rights of ownership in the text of the catalogue, and the right to publish it elsewhere, if, prior to the termination of the agreement, the guest curator had completed and delivered such text to the museum.
The contract should set out the rights and responsibilities to modify, and approve of modifications to, the exhibition or the curator’s work product. First, with respect to the catalogue, the parties should recognize that due to budgetary or other considerations beyond the control of the museum or publisher, the museum or publisher may wish to modify the catalogue text, whether by editing or abridging the guest curator’s contribution or by adding or deleting essays contributed by others. Where the catalogue text is a work-for-hire or has been assigned to the museum, the museum has the right to make such modifications without consulting the author. In such circumstances, the guest curator may want the contract to provide that he or she have a right of approval. Even where there is no contractual right of approval, however, the museum should make every effort to consult with the guest curator in recognition of his or her substantial contribution to the catalogue.
Typically, the museum would own all rights in the design of the catalogue. Where the guest curator is the sole or principal author of the catalogue text (perhaps excluding a preface by museum staff, a checklist, or similar ancillary content), he or she may want to have the right to be consulted on, or have approval regarding, the catalogue design, as well as the final text and illustrations. The extent of the guest curator’s rights in this regard should be specified.
Issues similar to those involving catalogues may arise with respect to audio, audiovisual, and multimedia works, including recordings, films, and new digital media (such as CD-ROMs and websites). The guest curator may have made a substantial contribution to such works or may even be regarded as their author. Accordingly, the guest curator’s rights of approval over, or rights to be consulted regarding, the final design and content of such works should, in appropriate cases, be handled by the contract in a manner similar to that relating to catalogues.
Second, as to all other materials (besides the catalogue or other audio, audiovisual, or multimedia works) produced in connection with the exhibition, the museum typically will want to have final control over, including the right to adapt, such work product. In this regard, the contract may provide that all matters relating to wall labels, docent training materials, the planning of symposia, the production of educational materials, the replacement or addition of objects in the exhibition, decisions regarding the proper installation of the show, press releases, and other issues pertaining to the presentation of the exhibition are within the museum’s exclusive purview. If the guest curator wishes to be consulted on such matters, or if the museum would like his or her involvement, the contract should so provide.
4. Fundraising and Exhibition Tours. Typically, it is the responsibility of the museum to raise funds for the exhibition and organize any exhibition tour. Nevertheless, the guest curator may be required to help, as requested, to make a presentation to a prospective funder or sponsor or to a potential tour venue, or to prepare written materials. To whom, and when, such presentations are to be made may be specified, or merely the right to request such services may be set out in the contract.
In preliminary phases of organizing an exhibition, a guest curator may be expected to assist in drafting initial grant applications to raise funds. The parties may wish to specify in the agreement whether and to what extent such services will be requested, and whether the guest curator will be separately compensated for such assistance.
When a guest curator is required to travel for fundraising presentations, or to potential tour venues, it is reasonable to expect the museum to pay associated expenses. The museum should be responsible for reimbursing the guest curator for such costs, but only when it has expressly authorized the trip or set out a budget for such expenses. This issue should be addressed specifically in the contract.
5. Credits. The guest curator is entitled to receive appropriate credit for his or her contribution to the exhibition. The museum should recognize that if a guest curator originates the idea for an exhibition, then he or she ought to be properly credited as the curator. The contract could specify where such appropriate credit should appear, such as in the various publications associated with the exhibition, including press releases and brochures. Similarly, the extent to which the guest curator’s name will appear in the exhibition itself should be set forth in the contract. The contract could also specify the placement and size of the credit in various media, whether printed or electronic. The contract should expressly state whether the museum has the right to use the guest curator’s likeness and for what purposes.
The museum’s curators and other staff often make very substantial contributions to an exhibition. In particular, an in-house curator frequently contributes with regard to, for example, the exhibition’s underlying conception, associated research, or the catalogue. The contract should specify whether the in-house curator, or other staff, will be credited as “project director” or “cocurator” and/or “coauthor” of the catalogue or whether their contributions should be otherwise acknowledged and, if so, in what way. In addition, research assistants and others who contribute to the content of exhibitions and catalogues should be acknowledged fully for the work they do, particularly if, for example, they have authored a section of the catalogue. The contract should address the issues relating to credits to avoid misunderstandings among the guest curators, in-house curators, assistants, and other staff.
6. Compensation for Curatorial Services; Catalogue Fees and Author’s Copies; Expense Reimbursement. The parties should negotiate and the contract should set out the manner and amount of compensation paid by the museum to the guest curator in recognition of the expertise that he or she brings to an exhibition and for his or her work products. In these negotiations, the parties should take into account that the payment should be fair, in light of the time necessary to render the services and the working circumstances of the guest curator. The three most commonly accepted practices of compensating guest curators for their services are: (1) an amount to be paid for the entire project (i.e., for all the services set out in the contract); (2) payment on an agreed-upon per diem or hourly basis; or (3) an amount to be paid for the entire project except the catalogue, on which a separate royalty agreement is made, either for only the trade edition or for both the trade and museum editions.
If the guest curator is responsible for all aspects of curating an exhibition (particularly when a substantial scholarly catalogue is involved), it may be preferable for the parties to define the tasks and agree on an amount to be paid for that work. In this case, the amount could be paid on the basis of a schedule, either on dates certain or by completion of milestones, such as one-third on signing the agreement, one-third on completing the loan list, and a final one-third upon opening the exhibition. Similarly, the parties may wish to contract for discrete items (the loan list, wall lists, audio works, the catalogue, etc.) and assign certain payments to the delivery of each such work product. In either case, the contract should provide if there will be financial penalties for delivery past the scheduled due date, and when such penalties might be incurred.
A second method of compensation—to pay the guest curator on a per diem or hourly basis—may be appropriate for tasks where the amount of work may be more difficult to determine at the time the contract is negotiated. Examples of such projects may include cataloguing an uninventoried collection or bringing some other expertise to bear on an unorganized group of objects. Again, the contract should specify both the rate and schedule of payments as well as the procedure for making payment (e.g., within thirty days after delivery of an invoice to the project director setting out the guest curator’s services in detail).
Guest curators generally will not be entitled to receive any insurance, vacation, health, or other benefits for which the museum’s own staff is eligible. Any staff benefits to which the guest curator is entitled should be set out in the contract.
In addition to the curatorial services that he or she may provide, the guest curator may be asked to write a catalogue. Whether and to what extent the guest curator should be entitled to a separate fee for the catalogue, or royalties tied to the sale of the catalogue, in addition to the curatorial fees described in the preceding paragraphs, will be the subject of negotiation between the parties.
The policies of museums and other publishers regarding catalogue and other book-publishing fees and royalties are complicated and vary significantly. In most (but not all) cases, the guest curator will be paid a flat fee for writing a catalogue. Guest curators, however, may prefer an alternative, royalty-based method of compensation, which would reward them more directly for their labors in connection with a catalogue. Under this approach, they would receive an agreed-upon percentage of the wholesale price of each catalogue sold (a distinction may be made between sales within and those outside of the museum); any such arrangement, along with a payment schedule, should be set out in the contract.
The guest curator and the museum or publisher should agree in the contract as to how many copies of the catalogue he or she will be given gratis, at what discount he or she will be entitled to purchase additional catalogues, and how many copies the museum or publisher will send out to reviewers and colleagues at his or her request.
A guest curator may include in an invoice various kinds of expenses in connection with the preparation and development of an exhibition: (1) the gathering and organization of research materials (such as photographs and books); (2) travel (to see objects, consult with curators, and undertake research); and (3) office expenses (such as telephone, photocopying, courier, and secretarial services). The extent to which the guest curator should be reimbursed for such expenses should be specified in the contract.
First, guest curators cannot expect that expenses incurred prior to the signing of a contract will be reimbursed, although they could be considered in assessing what the curator brings to the project.
Second, whether, once the agreement is signed, the museum will reimburse the guest curator for costs associated with the acquisition of photographs should be set forth in the contract; it may be appropriate to reimburse up to a fixed amount. Whether such photographs should be made available, at no additional charge, to the guest curator for the catalogue should be negotiated, just as whether the guest curator’s photographic materials should similarly be made available to the museum. The ownership of the photographic research materials following the end of the exhibition should be set out in the contract.
Third, the parties should negotiate to what extent travel costs incurred by the guest curator will be reimbursed, perhaps based on specific budgeted amounts or numbers of trips. The guest curator may be reimbursed by the museum for research travel as well as for travel to attend meetings at which his or her attendance is requested by the museum, to help install the exhibition, to visit tour venues, and to attend the opening of the exhibition. Understandings in this regard should be set out in the contract, perhaps with estimated costs, or a budgetary ceiling by category, for such travel.
Fourth, the contract should specify whether office and other administrative costs incurred by the guest curator in connection with the exhibition should be reimbursed.
7. Term and Termination; Cancellation; Residual Materials. The term of the agreement between the guest curator and the museum generally will expire on the closing of the exhibition, unless otherwise specified in the contract or by subsequent amendment agreed upon by the parties.
The agreement should also address what might happen should there be unfortunate occurrences that cause a breach of the agreement or that otherwise might effectively prevent the exhibition from opening. First, the museum may wish to have some remedies should the guest curator not perform his or her services, or fail to do so on a timely basis, or if his or her work is deemed by the museum to be unacceptable. Specifically, the contract could provide for financial penalties, unless the museum breached its obligations or the curator’s failure is occasioned by circumstances beyond his or her control (e.g., illness). Furthermore, where the guest curator breaches his or her obligations, the contract may provide that the museum can terminate the arrangement, perhaps on the payment of certain amounts to the guest curator. Moreover, the museum may, nonetheless, also wish to proceed with the exhibition, notwithstanding that the original idea was that of the guest curator. Should the museum continue the project without the guest curator, the extent to which his or her role in the creation of the project is acknowledged should be specified and agreed to by all parties.
Second, the contract may provide for remedies if the museum breaches its obligations. Should, for example, the museum not adhere to the agreed-upon timetable for moving forward and render the project dormant, then the contract might provide that the museum has, in effect, canceled the exhibition. In that circumstance, the contract could state that the guest curator could terminate the contract and has the right to approach other institutions regarding the exhibition; he or she might not be able to do so, however, absent permission from the museum, if the project had been conceived jointly by the guest curator and museum staff. If the museum materially breaches provisions of the contract (such as by altering the content of the catalogue, failing to credit the curator properly, or changing the concept of the exhibition without the curator’s consent), the contract should state that the museum should cure the breach to the reasonable satisfaction of the guest curator.
The circumstances relating to either party’s breach, should they arise, may be awkward, at best. Accordingly, the better practice is for the agreement to specify clearly the parties’ respective rights, obligations, and remedies.
Third, with respect to the catalogue, it is possible that the parties may disagree about the written content. The contract should address what might happen in such circumstance, including whether the guest curator could publish the catalogue on his or her own (assuming that the catalogue would otherwise have been a work-for-hire or been assigned to the museum) without the museum either being associated with it or paying for its production.
Fourth, the agreement may provide that the exhibition would be canceled if the museum fails to receive funding grants.
Fifth, and more broadly, the museum may wish to negotiate for the right to cancel the exhibition and terminate the agreement at any time (and for any reason) for an agreed-upon buy-out fee.
Sixth, in certain circumstances, the museum may wish to terminate the agreement with the guest curator while, nonetheless, moving forward to mount the exhibition. To what extent it should be able to do so, and whether the guest curator would be entitled to compensation for his or her role in conceiving the idea for the exhibition and for services rendered, or reimbursement for expenses incurred, up to the date of termination could be set out in the contract.
In one or more of the above circumstances, where the museum elects to terminate the contract, the guest curator may wish to negotiate for a cancellation fee. Any such fee should be set forth in the contract.
If the museum cancels the exhibition, the issue of whether it has the right to revive the project subsequently, and whether it is able to do so with or without the involvement of the guest curator, should be addressed in the contract. Furthermore, in the event of museum cancellation, the extent to which research materials (such as photographs) purchased by the museum for the exhibition should be given or lent to the guest curator to assist him or her in realizing the project and publication of the catalogue elsewhere should be negotiated.
In the course of mounting an exhibition, a museum routinely constructs or installs special cases, frames, enlargements of photographs, wall texts, and the like. All these materials are assumed to be property of the museum upon the closing of the exhibition, unless otherwise specified by the contract.
In connection with ownership of intellectual property rights, the contract should clarify which party will, upon the termination of the agreement and/or the closing of the exhibition, own associated research materials. Whether the other party will have continuing rights to use such materials thereafter should also be specified in the contract.
8. Tour Venues. The guest curator is unlikely to have contractual relations directly with the other venues to which an exhibition might tour. In general, therefore, the contract should provide that the museum has responsibility for using reasonable efforts to ensure that other institutions with which it makes arrangements to tour the exhibition adhere to the terms of the museum’s contract with the guest curator. The guest curator’s contract could provide that the museum’s contracts with such other institutions incorporate (whether by attachment or otherwise) all such terms.
Part Two: Exhibitors/Artists
For purposes of this document, “exhibitor/artists” means artists who have been hired by a museum to create an installation or exhibition (whether in a one-person or group show) of their own work.
1. Timing of Arrangement. In general, it is preferable for museums and exhibitor/artists to enter into specific contractual arrangements at the outset of their relationship. Nonetheless, it should take note of possible vagaries of funding and state what would precipitate termination or cancellation of the exhibition.
2. Parties’ Respective Responsibilities. It is preferable to identify the specific responsibilities of the exhibitor/artist in the contract. These responsibilities could include a description of the artworks that will be assembled for the exhibition (from the museum’s own collection or elsewhere) or created by the exhibitor/artist specifically for the show. Where new works are created for the exhibition, the agreement could set out a clear timetable for producing and delivering the artworks to the museum. If the artwork is not completed on time through no fault of the museum’s, the agreement may provide that the museum may elect either not to use it or to cancel the exhibition. The contract could also specify a financial penalty (if there is a fee to be paid to the exhibitor/artist) to compensate for the exhibitor/artist’s delay or other failures in completing the artwork.
If the exhibitor/artist has other responsibilities, such as assisting in the design of the exhibition, or in connection with the opening, press tours, lectures, or other educational activities, those also could be set forth in the contract.
3. Museum Liaison, Policies, and Commitments. The contract should specify the name of the representative or representatives of the museum to whom the artist may turn for authorization as needed, either with respect to reimbursable or billable expenditures (administrative staff), or with regard to the museum’s obligations (curatorial staff). The parties also may want the contract to describe to what extent the exhibitor/artist can expect other support from the museum (such as for office use, preparatory work in connection with the exhibition, use of stationery, etc.).
The museum’s policies on travel and expense authorization and reimbursement should be made clear to the exhibitor/artist in the contract. Whether there will be expense reimbursement for the creation of the artworks (e.g., for the purchase of raw materials), for travel to the museum for consultations and other meetings, or to attend the opening, or for other expenses, such as the cost of assistants, secretarial and photocopy services, telephone bills, shipping costs, or other expenses needed to create and display the work in the museum, could be specified in the agreement. Responsibility for costs associated with shipping and return of artworks should be clearly understood.
The contract should describe with precision the parties’ respective obligations with respect to safeguarding or insuring the artworks. In particular, when does the museum assume responsibility for the works: When the (possibly offsite) construction begins? When the object leaves the studio? When the object arrives at the museum?
Other commitments may be made with respect to the scope and number of mailings, the extent to which the exhibition will be publicized, any opening event, the length of the exhibition, any admission fee, and the production of a poster, catalogue, brochure, film, video, website, or other educational or associated materials or events, although the parties may wish to recognize that these commitments may need to change over time.
4. Ownership; Rights to Reproductions; Presentation. The contract should specify the parties’ relative rights with respect to the ownership and use of any intellectual property contained in the artwork. Under US copyright law, the exhibitor/artist who creates the artwork owns all copyright interest in such work (and any attendant text or other works of authorship), unless the contract provides that the work is one made for hire (“work-for-hire”) or the contract expressly assigns the copyright in the work to the museum. Unless the museum has contracted to acquire the rights to the artwork before, during, or after the exhibition, the exhibitor/artist owns—and continues to own—all rights in it.
If the museum acquires the artwork itself, the copyright may remain with the exhibitor/artist. The museum’s acquisition contract, however, typically will provide that certain copyright rights are licensed to the museum, including the right to make reproductions of the work for contractually specified uses. Such grants of copyright should be expressly stated in the exhibitor/artist or, more commonly, the acquisition contract.
Where the exhibitor/artist retains the ownership in the artwork itself, and of all copyright interests in the artwork, the contract may provide that the museum has the right to photograph or to make reproductions of the work or derivative works thereof. The museum may be granted the right to make any and all kinds of reproductions (from slides, posters, and postcards to commercial and/or noncommercial uses or promotional materials and advertising); the contract should also specify whether such rights are all inclusive or restricted to only certain uses and only in particular media, such as hard copy, film and video, existing electronic formats (e.g., web sites), or future electronic formats. The parties should address whether any such reproduction rights terminate with the end of the exhibition or continue for a definite or an indefinite period thereafter—for example, in connection with documenting the installation of the artwork in the museum.
The contract may also provide that the museum has the right to license third parties to reproduce documentation about the installation. Whether the museum has the right to license third parties (such as publishers or other manufacturers of items that could be purchased in the museum shop) to reproduce the artwork itself should be specified in the contract. If the contract permits the museum to license such rights, any restrictions as to who may receive such third-party licenses and for what purposes must be specified in the contract.
Where the exhibition has been canceled or the contract terminated, the contract should provide that all intellectual-property rights (including all those described above) revert to the exhibitor/artist. The exhibitor/artist may be expressly given the right to take the artworks elsewhere.
The contract could also clarify the respective rights of the museum and the exhibitor/artist with respect to the installation and manner of presentation of the artworks (including, for example, equipment to be used to show audiovisual or multimedia works). If the exhibitor/artist is given rights of approval over press releases and other materials that the museum prepares, such rights should be reflected in the contract.
5. Involvement in Fundraising and Touring. If the exhibitor/artist is involved in making presentations to funders or sponsors, or to potential tour venues, the contract may address such obligations. If the museums to which the exhibition tours wish to have the exhibitor/artist involved in the installation of artworks, the contract also may so provide.
6. Credits. The contract also should specify clearly the type of credits that the exhibitor/artist will receive—possibly including size, placement, and frequency of the credit —at the exhibition itself, in associated materials, and in promotion of the exhibition. Although the issue of credits may not be as complex for a solo exhibition, for joint or theme exhibitions the respective crediting of contributors may be detailed in the contract. If the exhibitor/artist wishes to permit the museum to use his or her name and likeness, the contract should expressly grant the right to do so.
Conversely, the exhibitor/artist may wish to have the contract specify which curatorial or other museum personnel will be given credit and how their roles will be described in documentary or other materials.
7. Fees and Royalties. If there is a fee paid to the exhibitor/artist for creation of the artworks, then such fee—and a timetable or schedule for payment—should be specified in the agreement. If the museum wishes to acquire a work in connection with an exhibition, the costs of acquiring the artwork should be stated specifically in the contract, or in a separate acquisitions agreement. It should be indicated if the costs of the installation will be paid by the museum or the artist.
If any royalties are to be paid to the exhibitor/artist from the sale of materials on which the artworks are reproduced (such as the catalogue, posters, etc.), the amounts and other terms of payment should be itemized in the contract.
The museum normally retains the right to terminate the project, but the parties should negotiate a cancellation fee that would be stated in the contract. Such a fee may be without regard to the exhibitor/artist’s expenses to date, or could be limited to just the reimbursement of certain specified expenses.
8. Term and Termination; Return and Removal. The term of the contract will usually be specified. Other contractual provisions may address such matters as the rights, if any, of the museum if the artwork is not acceptable. The parties’ respective rights to cancel the exhibition or terminate the contract for breach or other reasons should be specified. Contracts normally provide that they may be terminated if funding for the exhibition is not secured.
In the course of mounting an exhibition, the museum routinely constructs items for display, such as cases, frames, enlargement of photographs, and wall texts, which are usually retained by the museum. The contract should so state and specify if any of such materials are not to be considered museum property. The ownership of any residual materials used by the exhibitor/artist in installing the artwork could also be specified. Inventoried items in the museum’s collection or otherwise in its possession would not belong to the exhibitor/artist nor would computers, light fixtures, pedestals, or cases.
Responsibility for the cost and schedule of removal of the artworks or any other property belonging to the artist should be specified in the contract.
9. Tour Venues. The exhibitor/artist is unlikely to have contractual relations directly with the other venues to which an exhibition might tour. In general, therefore, the contract should provide that the museum has responsibility for using reasonable efforts to ensure that other institutions with which it makes arrangements to tour the exhibition adhere to the terms of the museum’s contract with the exhibitor/artist. The exhibitor/artist contract could provide that the museum’s contracts with such other institutions incorporate (whether by attachment or otherwise) all such terms.
Part Three: Catalogue Essayists
1. Particulars of Agreement; Subject Matter; Fees; Kill Fee. A contract or letter agreement (signed by both the essayist and a representative of the museum) should specify the subject matter, approximate length, a deadline, the fee (normally a flat fee), and the number of complimentary copies of the catalogue for the essayist. The parties may choose to detail their relationship further, such as establishing a payment schedule tied to submission of the essay, or determining the consequences of any delay in delivery (or other failures) by the essayist; the contract could contain percentages by which the agreed-upon fee will be reduced due to such delays or failures.
The parties may also wish to clarify whether the agreed-upon fee, or some other fee (a “kill fee”), should be paid if the museum decides not to use the essay.
2. Right to Modify; Third-Party Materials. Museums or publishers often ask essayists to adapt, or accept adaptations, to reflect budgetary, design, or printing considerations. In this regard, the contract should address specifically whether the museum or publisher can alter, abridge, or otherwise modify the essay, whether with or without the permission of the essayist. Specifically, the contract should specify whether such changes must be made in consultation with the essayist and whether there would be any separate ownership arrangements regarding the modified text.
The essay may incorporate photographs or other material owned by third parties. The contract should specify who—the essayist, museum, or publisher—is responsible for acquiring such materials and for making rights payments to such third parties. If the amount of third-party material is likely to be extensive, the contract should specify the extent to which the parties will work together to modify or limit such materials to work within the museum’s or publisher’s budget.
3. Ownership. Ownership of copyright in the essay should be expressly addressed in the contract or letter agreement. Under US copyright law, the essayist, as the author of the essay, owns the copyright, unless express provision is made in the contract for the essay to be a “work made for hire” (“work-for-hire”) or for all the rights in the essay to be assigned to the museum or other publisher. If the essay is a work-for-hire, or if all rights are assigned to the museum or publisher, the essayist has no rights in the essay except those expressly granted back to him or her by the contract. Museums and publishers frequently ask that essays be works-for-hire to facilitate their adaptation or editing of the works to meet their needs, as well as to obtain the rights necessary to pursue infringers.
If the essayist does retain ownership rights, then the agreement may specify which rights are granted to the museum or other publisher. In this circumstance, museums and publishers will want the right to make changes to the essay or contribution (for budgetary or other reasons); it may be appropriate for them to do so in consultation with the author.
Where the essayist retains ownership rights, the parties could agree that the contract licenses the museum or publisher the right to first publish the essay, and in which media (hard copy [hardcover and/or paperback] and/or electronic media, in present and future formats, known and unknown) the museum or publisher may exercise such rights. The museum or publisher may be given the right to reprint the essay, in the context of reprinting the entire catalogue, as often as it wishes; the contract may address whether such reprint rights are in specific or all media and whether or not additional fees are to be paid to the author. The parties may specifically wish to address the right of the museum or publisher to reprint the essay apart from the context of the catalogue. Such rights need not be specifically addressed in the contract if ownership of the essay is transferred expressly to the museum or publisher.
If the essayist owns the rights in the essay (i.e., it is not a work-for-hire and/or the ownership rights are not assigned to the museum or publisher), then it will not be necessary to specify the essayist’s rights to publish elsewhere. If, however, the essay is a work-for-hire or the rights to the essay are assigned to the museum or publisher, then the parties may wish to agree that the essayist retains the right (or receives a license back from the museum or publisher) to reproduce or otherwise make certain uses of the essay (including preparing subsequent works, such as books, based on the essay), in certain media, apart from the catalogue.
4. Credits. The essayist is entitled to receive appropriate credit for his or her contribution to the catalogue. The contract should provide that the name of the essayist will appear on the catalogue’s title page and on the table of contents. In addition, the contract could specify the materials on which additional credit would appear, such as in the press releases for the exhibition. The contract should specify the size of the credit appearing on the pages of the catalogue, or elsewhere, and the parties may agree that the essayist will have the right to review page proofs. Identification of the essayist, including his or her full professional title and university, museum, or other affiliation, should appear following the essay, or elsewhere in the publication, as the parties may agree.
Authors and Contributors
Ad Hoc Committee on Guidelines Regarding the Hiring by Museums of Guest Curators, Exhibitor/Artists, and Catalogue Essayists as Outside Contractors: Jonathan Fineberg, University of Illinois, Urbana-Champaign; Robert Bergman, Cleveland Museum of Art; Gwendolyn Owens, Canadian Centre for Architecture; Marilyn Kushner, Brooklyn Museum of Art; Joan Marter, Rutgers University; Jeffrey P. Cunard, Debevoise and Plimpton, CAA Counsel.
The Ad Hoc Committee would like to thank the Museum Committee, which initiated this project.
