‘Put everything into writing’ if nothing else, should be the a clear and consistent message to all artists. You can never put too much into writing. After it is in writing, read it before signing.

‘But everything is so legalese’, did you say? If you do not understand anything – ask. If it does not say what has been explained, change it. NEVER SIGN WHAT YOU DO NOT UNDERSTAND. If you do, you have only yourself to blame if things subsequently go wrong in the worst possible way for you.

What we hope to achieve in this series of articles is to remove some of the ‘fog’ that lay persons call ‘legalese’. We aspire to demystify the formalities of contract law as much as the artist strives to get the patron to understand his art.

Common contractual relationships are dealt with: bills of sale; contracts of sale; gallery and agency deals; exhibition agreements; public and private commissions.

Common contractual problems are also dealt with: damage to an artistic work; tracing lost artworks; disclaimers from liability (if an artistic work or performance caused damage to other property); terminating contractual relationships; insurance and valuation; loans and gifts; fakes; non-payment for work.

The contractual situations and issues covered by these articles continue to arise every day. It seems obvious that many artists feel awkward about introducing formal written contracts. However, that is not a cogent argument against using written contracts. The case reports abound with instances where “unwritten contracts” or implied terms being brought into play when things go wrong, often with very contrasting, uncertain and mostly unsatisfactory results.

Misunderstandings and disputes often arise when two people interpret the same situation in different ways. Quite often, such differences occur because these parties preferred to make assumptions (usually out of fear of embarrassment) to having full, frank, and unambiguous dialogue.

We give the example of the sale of artwork. This should be a straightforward commercial transaction; but the sale of work direct from an artist’s studio can be problematic if buyers are not given clear explanations of precisely what they are buying, ie is it a unique work; one of a series; or a limited edition work. Consider the respective perspectives.

Artists

Many artists never have a gallery or dealer to market and sell their work; and rely upon direct sales to buyers, particularly during the early years of establishing their practices. In recent years, a number of graduating art students have succeeded in selling work directly to buyers at their graduation exhibition or during their first participation in open studio events. In such circumstances the selling artist will have little or no experience of how to price their work or to negotiate with interested potential buyers. Where the work being sold is unique, problems are limited to collecting full payment from buyers; but sale of a piece of work that is, or is intended as, one of a few limited editions or part of a series of works creates more complications if selling artists do not make it absolutely clear to buyers that they are not getting a one-and-only-one-of-a-kind item.

Artists customarily make it clear to buyers when a work is one of a limited edition, usually by marking each piece with a number: 1/100 would signal the first of a limited edition of 100. Graphic and photographic prints, and cast sculptures, are the most common examples. The image held by the original screen / plate / transparency / software is used to create multiple original prints; similarly, the original mould for casting multiple original sculptures.

A series of works differs from a limited edition: each artwork in the series is unique and not a replica of an earlier original work; although features of the first in the series may well be repeated or reworked into later works in the series. Artists may intend a series of works to be finite / limited in number, or infinite / unlimited. Not all artists make their intentions clear to potential buyers.

Buyers

Collectors have a legitimate expectation to receive from the seller (who may not be the artist) accurate explanations and assurances about their purchase and its status as a unique artwork, or one of a limited/unlimited series or edition. The market value of the work will be affected by its uniqueness or otherwise: a unique work is likely to fetch more in the secondary market than one of a limited series or edition; work from an unlimited series or edition is likely to fetch significantly less than one of a limited series or edition.

Furthermore, collectors also expect the artist not to replicate a work that has been sold as unique; not to make a series of works substantially derived from a work that has been sold as unique, and not to extend the number of a limited edition or series stated at the time of purchase. Each of those acts by the artist, subsequent to a sale, is likely to reduce the market value of the original, and would be a fraud on the original buyer.

Key questions, therefore, are: what did the artist intend when the work was made and first sold; were those intentions conveyed to the buyer before the sale and, if so, by whom.

Artists and Buyers

Only artists (or their heirs and assigns) have the legal right to reproduce their original works or authorise others to do so, and to amend or alter those works: those rights (copyright and statutory moral rights) last for the artist’s lifetime plus 70 years after death in Singapore and in most countries in the world. However, good practice suggests that when artists have sold work they should seek to meet their buyers’ legitimate expectations and to make clear the artist’s own legitimate expectations, especially in relation to the replication or further development of sold works.

Ideally, artists should always sell their work accompanied by written documentation clarifying to first buyers not only the sale price but also a description of the work, and especially whether it is unique, a limited edition or series, and so on. It is particularly important to do so in the case of work that is, or is intended to become, part of a series because, unlike sales of work from limited editions (where, as noted above, artists usually number each work in the edition and buyers understand this ancient convention), no custom has been established to identify work from an existing or planned series. In the absence of such clarification (ideally written), buyers may legitimately expect the artist not subsequently to develop a series of works and, if that were done, to complain about fraud, misrepresentation and reduction in the market value of their original and – in their terms – ‘unique’ purchase.

And such complaints might legitimately be directed towards the artist, even where the collector did not buy the work directly from the artist. For example: an artist sells a work through a dealer, gallery or auction house; it is sold and resold; then the artist makes and sells a series of works developed from the original. Although there is no contractual relationship between the artist and whoever now owns the original work, that last buyer may legitimately complain directly to the artist.

Whether or not artists and buyers sign documentation clearly addressing these real and potentially problematic issues, it would benefit artists, those managing their estates after death, initial and all subsequent buyers, curators, archivists and art historians, if the artist made clear documentation of their working methods and especially of their intentions for all their works.