Ask Jeff

What Should I Know About Negotiating Contracts?

When an artist enters into a contract with a gallery, purchaser, museum, etc. to consign, sell, or exhibit work, the artist will be presumed under the law to have entered the contract at "arm's length," that is as a co-equal business entity with the other party. This means that an artist should never expect the courts to get them out of a lousy contract or to re-write an unwisely entered contract, unless the other party committed fraud or some other illegality is present in the contract. So, like any businessperson, negotiate your contracts wisely-even contracts that are presented to you by a gallery, etc. in a pre-printed format (any term can be changed before signing).

The first and most important point is to gather as much information as possible. From yourself, determine what terms are necessary to make the deal worthwhile to you, and then prioritize the terms you would like in the contract so that you are clear about what terms are essential and what terms you are willing to concede. Then find out as much as you can about the other party. What are the past practices, present goals, reputation of that party? Find out before negotiating and then discuss the deal with the other party and listen carefully to what is said.

Evaluate your bargaining power. You may realize that you have more leverage, or at least more options than you think (so stop laughing). How important is this deal to you; how important is it to the other party? You might think: "Many artists, few galleries," but there are actually many venues available for artists. But if your information shows that your bargaining power is limited, then work within what power you have (without being foolish). Who knows, the 80's may return for artists.

Strive for a fair deal. Figure out what is fair not only to you, but the other party. Again, this means listening to that party and what its expectations of fairness are. "Industry standards" are one way of evaluating fairness (although many artists believe, with obvious reason, that the industry standards are stacked against them).

Make sure the big issues (those that will potentially make or break the deal) are "out on the table" early in negotiations. But also have a concession strategy-that is, come prepared with terms that you are willing to omit from the contract, allowing for a give and take.

Remember: negotiating contracts is not personal; it is business. Too often we throw our identity and ideas of self-worth and esteem into what we do, especially the creation and then the public exhibition of our art. But try to have the (correct) attitude that your art dealings (not to mention your actual art) are not about you, but about getting to a certain goal. As best you can, detach, and realize that any anxieties you have are probably about something else, not the actual issue at hand. Before launching any venture, acquire as much information as possible and then work from your personal sense of comfort or "rightness." You might have to regroup and start over again after you acquire necessary information the hard way, but there are plenty of opportunities out there.