GUIDELINES FOR MUSEUMS OR OTHER NOT-FOR-PROFIT VISUAL-ARTS INSTITUTIONS WORKING WITH ARTISTS ON EXHIBITIONS AND COMMISSIONED WORKS
Adopted by the CAA Board of Directors on October 27, 2002; revised on October 23, 2016.
The College Art Association is the leading professional organization of visual artists and art historians and many museum professionals. CAA offers the following guidelines for consideration by the professional staffs of museums or not-for-profit galleries and comparable institutions (hereafter “museum’) when they work with exhibitors/artists (hereafter “artist”) as independent contractors loaning or creating original works of art for the institutions’ exhibition programs and/or permanent collections.
In the relations between a museum and an artist, a written document—which could take the form of a contract, memorandum, or letter of understanding (hereafter “contract”)—is essential for articulating the rights and responsibilities of both parties to avoid misunderstandings and conflicts. The following guidelines focus in particular on matters to be addressed in preparing a contract. Where possible, it should be drawn up at the outset, or as soon as is feasible, before any collaborative work beyond the initial proposal is undertaken. Given the inevitably dynamic nature of the enterprise, however, the parties should recognize that it may not be feasible to address every conceivable circumstance in writing beforehand and that the contract should permit the parties to act flexibly in allocating responsibilities between them. The contract may provide language allowing changes to be made via amendments.
The artist may bring to a project creative and intellectual contributions far in excess of the time that is spent actually working on a specific project with a museum and thus in excess of any compensation outlined in a contract. By the same token, a museum invests substantial direct and indirect funding in mounting an exhibition; for example, the costs of arranging and insuring loans of works when necessary; the handling, installation, and safeguarding of works; booking and records management; marketing and public relations directed to the museum’s membership, the larger community, and mass-media organizations. Accordingly, when an artist and museum work together in developing an exhibition, they are engaged in a collaborative process that entails a variety of visible and less apparent commitments of time and resources. Thus, in entering into a relationship, the artist and museum have a mutual interest in fully identifying and articulating each other’s rights, responsibilities, and needs.
The remainder of this text is intended to serve as an outline of those topics of mutual interest to be considered by artists and museums when pursuing collaborative projects such as exhibitions or commissions. This information is neither comprehensive nor will all of it be relevant to every project. For this reason, artists and museums are encouraged to study this information carefully with a view to adapting it to their particular needs.
1. Timing of contract. In general, it is preferable for museums and artists to enter into a contract at the outset of their relationship. The contract should specify its duration and terms for cancellation (see “Duration and Termination of Contract” below).
2. Parties’ respective responsibilities. It is preferable to identify the specific responsibilities of both the artist and museum in the contract. These responsibilities may include the following:
- List of artworks to be assembled for the exhibition (from the museum’s own collection or elsewhere) and/or created by the artist specifically for the show.
- Cooperation in locating works in private collections and/or assistance in obtaining others’ agreement to loan works for the exhibition.
- Loan of works to be borrowed from the artist’s holdings of her or his work.
- Cooperation in developing and/or approving interpretive texts for the exhibition installation, wall labels, public relations uses, grant proposals, and other exhibition, outreach, and development purposes.
- Cooperation in developing and/or approving the design of the exhibition installation; related installation materials including wall and item labels; publications such as catalogues, checklists, or brochures; public relations materials; and print or electronic media advertisements and announcements.
- Cooperation in providing and/or approving the use and circulation of reproductions of the artist’s works.
- Participation in opening and related activities including press interviews or tours and donor events.
- Participation in documentation and outreach activities including lectures, panel discussions, oral history interviews.
- Adherence to mutually agreed-upon schedule for the delivery of works borrowed from the artist and/or created by the artist for the exhibition.
- Provide a clear schedule of due dates for the artist:
- For exhibitions, when works in the artist’s possession are to be released/delivered; consultations/approvals as required; submission of written statements as required; openings and related events requiring the artist’s presence.
- For commissioned works or installation projects,
- Assignment of a staff liaison with the authority to coordinate communications between the artist and various other museum-staff members; authorize reimbursable or billable expenditures for the artist; assign staff support and/or allocate museum space or other in-kind resources for the artist’s uses; and set or amend schedules for various exhibition-production deadlines in cooperation with the artist.
- Provide a clear statement of the museum’s policies on travel and expense authorization and reimbursement; for travel to the museum for consultations or to attend opening and special events; or for other expenses, such as the cost of assistants, secretarial and photocopy services, telephone bills, packing and shipping costs, or other expenses needed to create and display the work in the museum.
- If the artwork is to be created for the exhibition, a clear statement on the total budget and the policy on the allocation of payments if they are to be made in steps and whether or not they include the reimbursement of the artist’s raw materials and/or subsidiary services expenditures.
- Security and insurance of artworks while on the museum’s premises and during transit from and to lenders’ homes or other sites. (When works are borrowed from the artist’s holdings, the museum and artist should negotiate who is responsible for the insurance and security of the works during transit from and return to the artist’s studio.)
- If appropriate, the content, design, and quantity of publicity including print mailings, print and electronic media advertisements/announcements, content of publicity releases, posters, website and social media announcements, and the choices and presentation of reproductions in publicity.
- If appropriate, the content, design, and quantity of exhibition catalogues, checklists, and/or brochures.
- If appropriate, the content and production of educational or documentary materials including films, videos, and/or printed materials.
- If appropriate, the specification of licensing rights to third-party vendors for reproductions of commissioned works, installations, or works included in an exhibition to be used for commercial purposes, i.e., for the creation of products to be sold through gift shops or other revenue-generating outlets.
- If appropriate, the number and nature of related events including openings, press conferences, lectures, interviews, panel discussions.
- If appropriate, the creation, cost sharing, and use of visual exhibition-project documentation by the museum and artist.
- If appropriate, terms associated with the sale of works from the exhibition (see “3. Fees, sales, and royalties” below). These may include stipulations regarding the removal of sold works before exhibitions close or before exhibition tours conclude.
3. Fees, sales, and royalties. If there is a fee paid to the artist for the creation of artworks, then such fee—and a timetable or schedule for payment—should be specified in the agreement. Typically fee schedules are related to benchmarks, e.g., for commissioned works the benchmarks may include submission and approval of specific plans/maquettes, completion of works in the studio and approval there, and final installation on site. The fee schedule may also include penalties or fee reductions if the artist fails to meet specified deadlines.
If the museum wishes to acquire a work from the artist that has been included in their exhibition project, the acquisition should be conducted separately from the project contract. If the artist is represented by a dealer, typically the acquisition would be conducted through the dealer.
In instances where a third party wishes to purchase a work from an exhibition and the artist is represented by a dealer, the third party should be referred to the dealer. If the artist does not have a representative, the museum may refer the third party to the artist or act as an intermediary in arranging the transaction. Some institutions that act as intermediaries charge a commission on sales of artists’ works. Because the standard commission among most commercial galleries is about fifty percent, most not-for-profit museums and galleries will charge a smaller commission, typically in the thirty- to forty-percent range. In some localities, public-grant agencies and foundations require recipient institutions to cap commissions at a specified rate.
If the project includes the creation of catalogues, posters, and/or other kinds of saleable materials based on reproductions of the artist’s work, the contract should specify whether or not any royalties on sales of such materials are to be paid to the artist and, if so, the terms of the royalty payments. These terms may also include whether or not the artist may receive free copies of such materials, the quantities, and—should the artist wish more than the specified quantities—the artist’s discount for purchasing additional copies.
4. Copyright. It is important to recognize that the physical work of art and its reproduction are, under U. S. copyright law, severable, i.e., a museum may commission a work or acquire a work from an artist, but the transaction will not include its copyright unless the artist expressly includes the copyright as a condition of the commission or sale.
Accordingly, it is appropriate for a museum commissioning a work or acquiring a work directly from an artist to notify the artist of how U.S. copyright law would apply to the transaction and to include language concerning copyright ownership in the commission or sale contract.
When a museum commissions or acquires an artwork under circumstances in which the copyright remains with the artist, the museum may wish to include terms by which the museum may license in advance the right to make and use reproductions of the work for contractually specified uses such as in collection catalogues, conservation and registration documentation, publication permissions for external scholars, and related research and educational outreach purposes.
Contractually specified uses may also include reproductions for commercial uses or promotional materials and advertising, either by the museum or—through licensing agreements—by third-party not-for-profit institutions and/or for-profit enterprises. Under such circumstances, it may be in the artist’s interest to specify allowable purposes, i.e., whether such rights are inclusive or restricted to certain uses and only in particular media, such as types of hard copy (postcards, posters, calendars, etc.), film and video, existing electronic formats (e.g., websites), and/or future electronic formats; and whether such rights are limited to the United States or are worldwide. Such rights may be term limited with specified dates for renewal (or renegotiation).
All of these conditions may also apply to commissioned temporary installations after which the only documentation will exist in the form of photographs, film or video, and/or sound recordings.
Copyright contracts may also include provisions for circumstances wherein a commissioned work, installation, or exhibition is canceled. If the project includes preliminary images, maquettes, concept statements, or other provisional materials created in preparation for a project’s full realization, the artist may wish to assert intellectual property rights over such materials including their use in other venues.
5. Credits. The contract should specify the type of credits that the 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 complex for a solo exhibition, it could be for joint or group exhibitions when two or more participants must be credited. If the museum wishes to use the artist’s likeness in display or promotional materials, the contract should specifically address this topic.
The museum 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.
6. Tour venues. Should the museum and artist wish to have an exhibition tour to other venues, the contract should specify that the museum is responsible 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 artist. Further, the artist should be included in negotiations with the other institutions prior to confirming tour agreements in instances where the conditions of the inaugural contract are amended to address other institutions’ needs.
7. Duration and termination of contract. The contract should specify the dates of the contract’s inception and conclusion and, as applicable, key dates when aspects of the project should be completed (this section may reference items under “2. Parties’ respective responsibilities” above). The schedule for removal by the artist of artworks or any other property belonging to the artist at the conclusion of the project should be specified in the contract; if there are fees to be incurred for the return of abandoned artwork or other artist’s property to the artist after the project’s conclusion, this condition should also be included.
The contract should also specify the circumstances under which the contract may be terminated by either the museum or the artist prior to the project’s completion, as well as provisions for unwinding contractual obligations concerning work performed, expenditures incurred, and other matters involving financial commitments or expectations, as well as intellectual property that has been created but would be left unused. Considerations relevant to the termination of a contract may include:
- Breach of contract by the museum and relevant remedies;
- If, for example, the museum fails to meet deadlines, make scheduled payments, or cancels the exhibit, commission, etc., then,
- Remedies for the artist might include the artist’s right to terminate the contract without penalty, a severance fee to be paid to the artist for work already performed, or the transfer of intellectual property rights to the artist for work already performed.
- Breach of contract by the artist and relevant remedies;
- If, for example, the artist fails to meet deadlines, cooperate in essential aspects of an exhibition or commission project’s implementation, suddenly withdraws from a project, etc., then,
- Remedies for the museum might include the museum’s right to terminate the contract without penalty, the recovery of allocations paid in advance of completed work, or the recovery of expenditures made for supplies, equipment, and services in relation to commissioned works;
- An exception to remedies may be considered in the event the artist suffers a major accident or illness.
- Escape clause in the event the project depends on external grants that are not received;
- Escape clause for the museum in the event that work commissioned from the artist is found unacceptable:
- Remedies for the artist might include a severance fee to be paid to the artist for work already performed, or the transfer of intellectual property rights to the artist for work already performed.
8. Residual materials. In the course of mounting an exhibition, a 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 such materials are not to be considered museum property and may be transferred to the artist. The ownership of residual materials used by the artist in installing the artwork could also be specified.
Revised by Jeffrey Abt, Wayne State University, with the advice and approval of the 2015 Museum Committee.