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A Gallery Isn't Paying You for Sold Art
Now What Do You Do?
While the large majority of art galleries pay their artists within reasonable time periods for any art they sell, occasional galleries are either slow to pay or don't pay at all. One would think artists typically do what they can to protect themselves and their art in case they find themselves in nonpayment or any other types of difficult situations, but unfortunately, many don't. For instance, those of you who turn your art over to someone without proof or documentation confirming the consignment risk potential losses if disputes or problems ever arise... including nonpayment.
Hopefully any gallery you do business with will at least sign a simple consignment receipt itemizing every single work of art you're giving them. If they won't, you can only hope and pray for the best. For galleries with questions about signing, tell them this is how you keep track of your inventory-- for tax purposes, for archival purposes, so you know where everything is and who owns what, etc. Keep in mind that any contract or agreement can be negotiated, but if you decide to do a rewrite or change any wording according to a gallery's requests, be aware of what you might be giving up by doing so.
For any artist, keeping track of your art-- including photographs in case of loss or damage-- is essential for a number of reasons. In addition to documenting and itemizing your art for financial purposes, it's also a good idea to keep records of every show you have (including images of your art on display at galleries or other venues), and every sale you make. Also save receipts for art materials, supplies, equipment, shipping or moving, travel and other expenses related to your work. Among other benefits, these also come in really handy at tax time.
No matter how many precautions you might take, problems can still arise. So supposing a gallery is slow to pay? No matter how unpleasant things get, save threats or legal actions for last. Not only are attorneys expensive, but going legal is also time consuming and stressful. Ideally you want to figure out how to resolve any disputes on your own and as efficiently as possible, not to mention that your time is far better spent focusing on your art. As soon as you realize your relationship with a gallery may not be going according to plan, start keeping track of every interaction, conversation, correspondence or request you make including dates, times, emails, printed communications, who you spoke to, and how long you talked. Also keep copies of anything that confirms your attempts to collect on any monies owed to you.
As for getting negotiations going, begin by talking to the gallery owner in person. Avoid any temptation to get angry or aggressive at this early stage, but be clear, straightforward and directly ask where any missing payments are or when you can expect to be paid. No matter how reluctant or non-confrontational you may be, keep asking until you get a satisfactory answer. Hopefully you'll be able to reach some type of agreement. If you do, make every effort to get it in writing.
If the gallery owner won't meet with you or otherwise puts you off, call several times to follow up. If they continue to ignore your repeated requests, put your questions or concerns in writing, mail them and ask them to respond within a specified period of time (remember to save copies of all correspondences for your records). Remind them you've made repeated attempts to meet in person and ask why that's not happening. Detail your additional concerns along with any hardships or difficulties resulting from their nonpayment.
When you do finally get an appointment, you might consider having a mutual friend, artist or acquaintance, or one of the gallery's artists on hand in case it's necessary to mediate the situation. Suggest the option as it may take pressure off of the two of you if either is embarrassed or reluctant to speak. It also lets the gallery owner know you are speaking with others about your situation.
If you continue not to hear anything after the first letter, write again with the same questions, but also expressing frustration at not being able to either meet in person or resolve the situation. This time, consider sending the letter either Registered or Certified (check with your postal service to see which would make more sense). Once again, ask for an in-person meeting to take place within specified period of time, and mention any hardships resulting from the nonpayment. After a reasonable amount of time has passed without a response, call several additional times to follow up.
The point here is to make it clear you are not going away. Whatever steps you intend to take next, say what they are and then do them. For example, you might consider contacting a local news channel that deals with consumer complaints. Perhaps they'll be willing to make an inquiry on your behalf. If the gallery still won't cooperate, get increasingly serious, gradually escalate your attempts to resolve the matter one way or another, but continue to keep threats of legal action off the agenda. Calmly and diligently move forward step by step, and don't forget to document every one of your actions or attempts at resolution along the way.
If all resolution attempts fail and taking legal action becomes the last available option, carefully weigh the costs, time and stress involved in doing so. You might just want to walk away and call it a lesson learned. If however you insist that the gallery meets their obligations, you do have legal recourse.
Nonpayment matters are straightforward cases as far as lawsuits go and would be appropriate for small claims court if damages are under $10000. You won't necessarily need a lawyer, but they can be extremely helpful with respect to procedures as well as in overall stress reduction. Organizations like California Lawyers for the Arts and Volunteer Lawyers for the Arts in New York State can come in mighty handy here. These nonprofit groups generally make their members available to you at affordable rates. Private attorneys, on the other hand, are considerably more expensive. Wherever you live, check to see whether any similar arts groups or organizations exist in your state or country.
Consignment laws-- both state and federal-- generally cover fine art, arts & crafts, and a broad range of transactions. For example, the federal Uniform Commercial Code (UCC) is a set of uniform business laws that protect consignments. In order to protect yourself in a consignment situation, among other options, consider filing what's called a UCC Form 1 at the time of the consignment in the county where gallery is located. Briefly, this form states that as a consigner, you have an interest invested in the personal property of the gallery (aka your art).
The reason you file a UCC Form 1 is that if a gallery goes into bankruptcy, any one of their creditors can seize your art as payment for the gallery's debts. With the form, you are entitled to the return of all of your art, not other creditors. Without the form, you and all the other creditors can only hope the judge awards at least some compensation for whatever art you consigned, as the remaining assets of the gallery will be split among you. Regarding state consignment laws, you'll have to check with the appropriate government agencies where you live to see what your options are.
Written agreements are good to have in any consignment situation, but using common sense and doing advance research on any gallery you're thinking about getting involved are the best protections. See what sort of information is available about the gallery online. Ask artists who are either currently represented or have had past shows about their experiences with the gallery. Start slowly and avoid consigning large amounts of art to a gallery you haven't done business with before. Ask for references from other artists. If at any point interactions become uncomfortable or difficult, trust your intuition and walk away.
Lastly, if after continuing efforts you are still not getting paid, think seriously about spreading the word to other artists in the community. You can tell them exactly what happened and what you're going through, and let them make their own conclusions. No need to editorialize; the facts will suffice. Part of the reason situations like this exist and sometimes get completely out of control is that artists are reluctant to talk about or share their experiences with others in the art community. Especially with the advent of social networking, opportunities to take these issues public are greater than ever. The fewer artists who are victimized by these types of practices, and the more these types of dealers and galleries come to realize that artists will no longer keep their tales of woe to themselves, the better off we'll all be for it.
Thanks to Attorney Nancy Yamahiro for her generous assistance with this article.
Disclaimer: I am not an attorney and do not give legal advice. This article in no way, shape or form constitutes legal advice nor is it intended to be construed or considered as such. If you have any legal questions whatsoever about your art situation, contact a qualified and experienced attorney for answers.
(art by Jun Kaneko)