Standards and Guidelines
Professional Practices for Artists
Adopted by the CAA Board of Directors, February 2, 1977.
By way of background: An “Open Forum on Professional Practices for Artists” was held at the 1974 CAA annual meeting in Detroit. As Forum Chairman Louis Finkelstein noted in his invitation:
Historically the CAA has been an association of scholars, devoted to the dissemination of the results of scholarship, the exchange of ideas among artist-teachers, and the facilitation of faculty placement. In recent years the Association has extended its role to address itself to a variety of issues affecting the profession of art as an academic discipline. It has been involved in questions of preservation of artistic monuments, various aspects of governmental policy in the arts, recommendations as to the sale and exchange of works of art by museums, the status of women in the arts, [and] the status and nature of the MFA degree. . . . In the case of the CAA resolution supporting the MFA as the terminal degree . . . experience has shown that the Association has been able to affect the practices of a number of institutions. In a like manner, the Association could address itself to a wider range of issues affecting artists, such as the development of greater artist participation as experts or as advocates in the policies and practices of museums and other public bodies, recommendations and dissemination of standards of professional practices and legal safeguards in relations between artists and galleries, and the recommendation of particular practices with respect to the special problems of artists as members of faculty. . . .
Some of these issues have been addressed elsewhere (e.g., Resolution on Juried Shows; Resolution on the Composition of Museum Boards; Guidelines for Part-Time Employment; etc.). As a result of the 1974 Open Forum, a Committee on Professional Practices for Artists was established and charged with the mandate of developing recommendations in those areas where ethical and professional guidance seemed particularly appropriate. The committee has worked hard and (obviously) long. The document below was discussed at several meetings of the CAA Board of Directors, and unanimously adopted on February 2, 1977. Like its predecessor, A Code of Ethics for Art Historians and Guidelines for the Professional Practice of Art History (adopted by the CAA Board of Directors on November 3, 1973), it is not intended as the “last word,” but may be expanded as the need arises.
A Code of Ethics for Artists
I. Instruction on the Safe Use of Materials and Equipment
Preamble. In recent years, the profession has become tragically aware of the dangers posed to artists by their equipment and materials. The previous absence or limited accessibility of information on health perils meant that many artists who taught as well as students worked in ignorance of these dangers. Whether or not an artist avails himself or herself of the information available concerning health risks is a matter of individual choice. Ethically, however, the CAA does not feel such a choice exists for teachers of art students.
Resolution. A teacher of art is ethically obligated to study and learn as part of his or her professional competence and preparation all relevant information concerning proper health and safely procedures in the use of equipment and materials of his or her discipline. A teacher of art is ethically obligated to teach, maintain, and enforce the highest professional standards of health and safety in the use of equipment and materials employed in the course.
II. Recommended Use of Copyright Notice
Preamble. Most artists are unaware of certain rights available
to them. For too long, and to their financial detriment, many artists have considered
the use of copyright as demeaning of serious art because of its prevalence in
commercial art. While it is not yet common practice, more and more serious artists
are using copyright in order to retain a future financial interest in their work.
It is the view of CAA that there should be no stigma to the utilization by
a serious artist of an important commercial right.
Resolution. It shall be considered proper professional practice
for an artist to place a copyright notice on any and all works of art he or she
shall create.
Guidelines for the Professional Practice of Studio Art
I. Instruction on the Safe Use of Materials and Equipment
The art teacher should ascertain whether or not his or her institution carries liability insurance that protects the teacher in case of students suing for accidents which may occur during class time or execution of work and, if not, should urge that such coverage be obtained. (The most complete publication to date on this subject is: Michael McCann, Health Hazards Manual for Artists [New York, Foundation for the Community of Artists, 1975], 25 pp.)
II. Contracts with Art Dealers
Dealers may be classified as: (i) vanity galleries, i.e., those that, for a fee, allow artists to use their premises for an exhibition; (ii) one-exhibition dealers, i.e., especially a small dealer who makes an arrangement with an artist for one exhibition or, possibly, for a single season; and (iii) the personal representative, i.e., an established dealer who enters into a long-term relationship with the artist and seeks to advance the artist’s career through exhibitions and publicity, by bringing the artist’s work to the attention of critics and curators, by seeking to place the work in important private and museum collections, and by developing a secondary market for the artist’s work.
Although contracts will vary, a number of provisions are customary in contracts made with the personal representative type of dealer:
- Duration and Coverage. Agreements are typically for a one- to three-year period, generally not longer than five years, and sometimes provide options for renewal or cancellation prior to the end of the specified term. Normally all works created by the artist, with the possible exception of graphics, are included. The agreement may provide for dealer exclusivity within a defined geographical area. If the artist enters into an exclusive arrangement, the contract should ideally provide for approval by the artist of other dealers with whom the exclusive dealer may arrange exhibitions or consignments.
- Expenses. It is important for the contract to spell out the expenses that are to be absorbed by the dealer and those which are to be absorbed by the artist. Expenses of promotion, advertising, catalogues, openings, announcements, transportation from the dealer to purchasers, and insurance are frequently absorbed by dealers. Where the dealer does not pay insurance costs, the artist should consult with an insurance broker and obtain insurance to cover each consigned work during transportation, exhibition, and storage. Valuation of each work should typically be at the amount actually to be received by the artist from the sale of the work.
- Exhibitions. Some contracts provide for a specified number of exhibitions to be held during the term of the agreement. Participation by the artist in the installation of exhibitions is customary, whether or not provided in the agreement.
- Commissions. Dealers are compensated for their efforts on behalf of the artist by the payment of a commission on works actually sold. The contract should set forth the rate of commission to be paid, which may vary from 33.3 percent to 50 percent depending upon such factors as the status and bargaining power of the artist and the dealer and the services provided by the dealer. Commissions may vary in cases of large sculpture, on sales from the artist’s studio (where permitted), on works consigned to other dealers, on special commissions, and on graphics.
- Sales, Advances, and Accounting. The artist has the right to set the sales prices of his or her works and should do so in consultation with the dealer, who will be aware of the market for the artist’s works. The contract should provide for a periodic review of prices, customarily at the end of six months or a year. The contract may also provide for advances to the artist against sales. In such event, there will also be a provision for repayment of any balance due to the dealer at some point, sometimes at the end of the contract term. In such cases, the contract may provide for repayment in works of the artist. The artist should consider whether this is more advantageous than repayment in cash. The contract should also provide for periodic accountings, not less frequent than twice each year, at which time all amounts due to the artist should be paid. The artist should, if possible, make a photographic record of all works consigned to dealers, obtain receipts for all works consigned, and give receipts for all works returned. The artist is entitled to examine the dealer’s records with respect to transactions involving works consigned to the dealer. The contract ideally should also specify whether and to what extent the artist or the dealer is responsible for credit risks, and when the artist becomes entitled to payment if a sale is made on an installment basis.
- Termination. The artist should consider the desirability of a provision or termination of the agreement in the event of death of the artist or dealer, or in insolvency or change of ownership of the gallery. The artist should also consider the possibility of the protection of consigned works and proceeds of sale from creditors of the dealer through the reservation of a security interest.
There are many other problems pertaining to contracts with dealers which are not covered here. It is emphasized that it is in the artist’s best interest to consult a lawyer with respect to all contracts with dealers. Where the artist is unable to afford a lawyer, the local chapter, if any, of Volunteer Lawyers for the Arts should be consulted. (The most detailed and recent “Model Form of Artist-Gallery Agreement” has been composed by the Lawyers for the Arts Committee, Young Lawyers’ Section, Philadelphia Bar Association, 423 City Hall Annex, Philadelphia, PA 10107, 14 mimeographed pages, free.)
Written by Gilbert Edelson, 1975.
III. Contract for Public Commission
Public commissions are works which are acquired for use or display in public places, other than museums or art galleries, and which are generally created by the artist especially for the purchaser, which may be a public agent or a private enterprise. Such commissions may enhance the quality of life of the community in which they are located and improve the visual character of the environment. The importance of such works has been amply demonstrated over the years; many of the great works of the history of art were created as public commissions. Such commissions should therefore be encouraged as a matter of public policy. A good example of such encouragement is the legislation which has been enacted by a number of states and municipalities providing for the expenditure of a specified proportion of the cost of a government building (usually 1 percent) for public commissions for that building. Widespread enactment of such legislation, as well as an expanded program of public commissions by private enterprise, is therefore highly desirable.
The method of payment by which an artist is compensated for the creation of a public commission varies from a predetermined sum paid to the artist (who is then responsible for materials and fabrication and possibly for transportation and installation) to an arrangement under which the artist receives a fee, sometimes in the form of a “prize,” and the commissioning agency pays all other costs up to a slated maximum sum.
No matter how the artist is selected for a public commission, it is both customary and advisable to enter into a written agreement with the commissioning agency prior to the execution of the work. In negotiating an agreement for a public commission, it is advisable for an artist to obtain professional legal advice.
Among the provisions of such an agreement which are either customary or desirable are the following:
- The contract should contain specific provisions for the total amount to be paid as well as for the terms of payment. Where the commission involves a substantial expenditure of time and for materials by the artist, installment payments should be provided in order to keep the artist’s out-of-pocket disbursement to a minimum. Specific provision should also be made for the cost of transportation of the work to its designated site and for installation. The artist should be extremely careful in obtaining estimates from fabricators, shippers, and installation contractors prior to negotiating a price for the commission in order to be certain that the work can be executed, transported, and installed within the projected budget. The artist should, moreover, attempt to obtain a clause assuring additional funds to cover possible increased cost of materials, labor, and services incurred after the contract is signed.
- The commissioning institution will generally wish to provide in the contract for a specified time for completion. The artist should include a provision covering failure to complete the work within the agreed-upon time because of causes beyond the artist’s control (illness, accidents, strikes, acts of God), or because of delays due to suppliers, fabricators, contractors, etc. The artist therefore should be granted extra time for completion of the work equal to the delays.
- The site and the manner and position in which the work will be installed on the site should be specified in the contract and no changes permitted without the consent of the artist. Where an architect is retained by the commissioning institution, the artist should maintain close communication with the architect on such matters as environmental design, changes affecting the artist’s work, building code provisions, and applicable union contracts and practices. The contract should provide that installation of the work should be done under the artist’s supervision and control. The artist should also be aware of the fact that, despite contractual agreement, local union contracts and practices may prevent the artist from controlling the installation of his or her work. It should therefore be ascertained early in the contract negotiations just what union practices prevail in a given community.
- The artist should seek to provide that the work will be properly and adequately identified and maintained by the commissioning institution and to ensure his or her approval of all alterations and major repairs to the work made during the artist’s lifetime. The artist may wish to consider a provision for disownment of the work in the event that major changes or alterations are made without the artist’s consent. The artist may also wish either in the agreement or by separate means to provide a statement of intention and instructions for maintenance and preservation of the work after the artist’s death.
- The contract should also provide for reproduction rights that, ideally, should be reserved by the artist, subject to a royalty-free license to the commissioning institution for noncommercial purposes. In order to preserve reproduction rights, a proper copyright notice should be placed on the work as well as on all drawings and maquettes.
- The contract should state whether the artist, fabricator, or commissioning institution is responsible for insurance covering: workmen’s compensation, damage to the work while in the artist’s hands, and injuries to persons and property during transportation and installation.
- The contract (or at least a preliminary written agreement) should specify at what stage in a project the commissioning institution may reject the work and the consequences of such a negative decision, i.e., the contract should outline the stages and nature of submissions (drawings, models, budget, etc.); the client’s obligation(s) at each stage; and the compensation due to the artist in the event the commission is cancelled at any stage which precedes the client’s contractual obligation to have the work executed.
Written by Gilbert Edelson, Athena Tacha, and Edward Wilson, 1976.
Committee on Professional Practices for Artists: Athena Tacha, Oberlin College, Chair; Gilbert Edelson, Honorary Counsel, CAA; Albert Elsen, Stanford University; Philip Pearlstein, Brooklyn College, City University of New York; and Edward Wilson, State University of New York, Binghamton.
