Guidelines
Professional Practices for Artists
Adopted by CAA Board of Directors, February 2, 1977By 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:
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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 M.F.A. degree ... In the case
of the CAA resolution supporting the M.F.A. 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 ...
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/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 the 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 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 who, 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 artists 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, publicity, by bringing the artist's work to the attention of critics and curators, 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 which 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% to 50% 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 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%) 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/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/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 artist's death.
- The contract should also provide for reproduction rights which ideally,
should be reserved by the artist, subject to a royalty-free license to the
commissioning institution for non-commercial 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.
Committee on Professional Practices for Artists
Athena Tacha, Oberlin College, Chair
Gilbert Edelson, Honorary Counsel, CAA
Albert Elsen, Stanford University
Philip Pearlstein, Brooklyn College, C.U.N.Y.
Edward Wilson, S.U.N.Y. Binghamton