Commissioned Art Contracts Explained
Art is both an expression and a business. In some cases, it’s even both at the same time. But only when we’re talking about commissioned art contracts.
Contracts for commissioned art serve several purposes, such as:
They help to create a common understanding (understanding being the key word) of what’s expected and needed regarding the artwork.
For example, if the client wants to commission a piece of artwork, or a series, but is vague on details, this can be a cause for contention later.
So, a commissioned art contract can help you to ensure that the terms of the contract are understood by all parties, thereby avoiding the problem above from ever occurring.
In addition to this , commissioned art contracts help to ensure that the artist gets paid what they deserve. No doubt every attorney reading this can think of a case where the artist didn’t get paid because the client decided that he didn’t want to pay after the artist had produced the work.
But a contract helps to avoid this by preventing the client from doing this.
It sets clear expectations as to what will be delivered, when it’ll be delivered, and what will be delivered in return for that (payment).
So, it should go without saying that commissioned art contracts are incredibly important for both clients and artists alike.
Elements of a Commissioned Art Contract
The scope of work – In the contract, it should be clearly delineated what kind of art piece you are going to create. How big is the piece? Which materials are you going to use? It’s also helpful to know where the work will be shown, as that may impact your decisions about how to create the piece. Make sure you are on the same page with the client artistically and logistically.
The payment terms – It’s important to outline the payment terms, whether there is an agreed-upon fee, a percentage of any sales of the artwork in the future, or royalties on future merchandise. How much will the client pay upfront? When will the rest of the money be paid?
The deadlines – Both you and the client need to agree on when you will start the work, how long the project will take, and when the project will be completed. Also see section below on delivery.
The intellectual property rights – Will the collector / institution have any rights to the image of the final work or any of your working sketches or photographs? Will you be able to use images of the work in books, exhibitions and so forth? Will you be able to recreate the work in different formats if someone commissions you to do so?
The cancellation policies – If the client decides to cancel or is late in paying, what will happen to your work?
Commissioned Art Contract: Why You Need One
A commissioned art contract template can take your art business the extra mile when it comes to protecting your rights and those of your clients. Without a template, you won’t have a clear standard for drawn-out commissions – everything from the particulars of cost, to stipulations for how the art is displayed and what happens down the line.
While many formal contracts feel unnecessarily stuffy and formal, they exist to protect you and your clients from misconduct on either end. But, despite the benefits that they present, few independent artists take the time to draw up and customize a contract template.
Contract templates are a tool that eliminate the need to draft a new contract every time a client approaches you to request a piece of art. Templates are easy to customize to fit each commission. You can edit the terms without starting from scratch, which makes customizing contracts for each new job fast and easy.
Additionally, contract templates create efficiency in your business. Templates protect artists from potential exploitation. If you don’t have a contract, your clients will expect you to work for them for however long it takes, and they could demand unlimited revisions.
Commissioned Art Contract: How to Draft a Strong One
When it comes to commissioned art contracts, especially when dealing with a gallery or brand, it’s crucial that the contract accounts for every foreseeable scenario. In the case of a commissioned piece, it’s ideal to create a document that addresses the different stages and outcomes throughout the working relationship. For example, what happens if the piece is damaged or if the client refuses to pay after viewing the finished work? What if both parties agree to change the terms of the contract mid-project unexpectedly? If the client doesn’t want to pay because the finished artwork doesn’t meet their expectations, is there an official dispute resolution process? All of these answers—and more—should be covered in your commissioned art contract. When drafting a commissioned art contract, start by covering the basics:
Once you’ve gotten the preliminary details sorted out, start to develop the body of the contract. Provide a detailed outline of what the commissioned work is intended to be, including any additional materials needed for the completion of the piece. Outline a timeline for completion so that there is a record of how long the piece should take to finish. It’s also a good idea to provide a timeline for review, so that the client can address any changes they would like made upon viewing the finished piece (this should be clearly outlined in the contract). You should also address what will happen to payment if the client cancels the project before completion of the work, or if it’s completed but the client decides that it’s not acceptable. Once the piece is completed, what will happen to the original artwork? Be sure that you have outlined all details for both parties, so that they can be held accountable if problems arise.
Commissioned Art Contracts: Common Mistakes
Both artists and clients often misunderstand the finer details of commissioned art contracts. This can lead to conflicts down the line, expense to both parties to resolve any misunderstandings, and, in some cases, no recourse at all.
The most frequent issues are:
- Lifting copied images from the internet
- Artists who reproduce borrowed work
- Artists who make arbitrary decisions about a subject matter without proper client consultation
- Clients who fail to reciprocate the effort already outlined in the contract
- Clients who falsely believe the artwork was stolen or damaged
- Failing to be reasonable about how soon the artwork can be completed
- Neglecting to have milestones outlined in the contract for payment, check-ins , and delivery expected
- Failing to include reference images as the subject matter
- Failing to realize you can’t upload the commissioned artwork onto social media or other forms of advertising immediately
- Not discussing what happens with the artwork if a client dies
- Failing to disclose future costs your work will generate for the client
- Failure to disclose other costs to the commission before it is contracted
- Clients who fail to understand the glossary of terms defined in the contract
If you’re a client, ensure that you read the contract fully, understand all aspects of it, and ask questions if anything isn’t clear. If you don’t like something in the contract, it can be negotiated.
If you’re an artist and you don’t get explanations when you ask for them, take your business elsewhere. There is someone else who would love to paint that unicorn.
Commissioned Art Contracts: Legal Aspects
The parties to a commissioned art contract will be legally bound to the contract under the laws of the jurisdiction stated in the contract (the "Governing Law"). Generally the Governing Law will be the same as the state or country in which the artist is based, but any competent contract attorney should be able to guide you through your choices.
In addition to Governing Law, the contract should also state the method by which disputes will be handled, or the "Dispute Resolution". Finally, there’s legal counsel. It is becoming more common for artists to use contract attorneys to ensure that their contracts are as good as they can be-in the artist’s best interest, and not blanketed in industry standard clauses which may not always benefit the artist. Using an attorney to review a contract is also a good idea for a client, as a way to avoid any nasty surprises later down the line, but many collectors, galleries, and businesses (ones who know what they’re doing) already have their own roster of lawyers.
Commissioned Art Contract Templates: Free vs Paid
As with anything, the quality of an online template will determine its value. Some templates are offered for free and are available in Microsoft Word format to be easily customized. These templates can often be a good start to begin the contract drafting process and don’t typically contain traps for the unwary or outdated information. However, they usually come with very little, if any , instructions; so you are on your own to hope that you are using the template correctly. Paid templates cost money for enforcement purposes. That means that you are paying for the knowledge of the attorney who drafted it so that you do not have to become a contract expert yourself. These templates also generally come with much more detailed instructions on how to customize it to suit both parties. So in essence, you are paying for some guidance on how to use it and a little more certainty regarding whether it will hold up in court or not.
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