Reading through Jim Kitchen's postings it danwed on me that I need to get me one of them transfer agreements, and so was wondering if anyone here can post or send me a sample of such a document. Much appreciated,
A good question...
There are many forms available for this commercial action, where each form could be described properly within your local legal system and, or your Federal, Provincial, or State jurisdiction, and clearly defined or modified by your legal Counsel. I do not believe that an international document exists for any "Transfer Agreement and Record (TAR)," but I did not delve into that issue while transferring my artwork to the gallery. The issue becomes very testy when you transfer ownership of the finished image, how the image ownership is perceived by the new owner, and how each jurisdiction interprets or honours the legal document. Copyright ownership comes to mind upon any art sale...
Most galleries try to maintain a document of this nature between the artist, the gallery owner, and between the new owner of the artwork, where the documentation sets the stage for any inclement action that may transpire. My last experience demonstrated that the ownership issue was very clear if the gallery collapsed resulting from financial issues, because I had an agreement that was designed by Counsel, which emphatically stated that I owned the identified images, the value of the identified finished images, and that the identified finished artwork would be returned to me quickly, whether a receiver's audit was undertaken and completed, or not.
I have also pressed galleries to sign a document, when they did not know that a document was required and, or they discussed that issue was irrelevant to the presentation and acquisition by any client. The latter comment would raise several identifiable concerns, and I would immediately request that I address the issue with the owner of the gallery, instead of any unacknowledging subordinate. If any issues remained, I would not present my images within the gallery, and I would explain the reasons to any individual that cared to listen. I have experienced complete mindless esoteric arrogance, and I have experienced complete and total awareness with a variety of gallery owners, but the issue is usually addressed in a professional manner, once the issues are clearly identified and understood by the gallery representatives and, or the gallery owner. These issues should be properly addressed before any images are deposited into their premises for sale.
I am periodically astonished at how a few artists do not know how to handle their business affairs and, or their financial risks properly, since they become too concerned about showing their work or they become too concerned and sensitive to any artistic rejection, compared to protecting their own valuable investments. Any artist should understand that they are a business entity, and they require some business acumen, no matter how small an enterprise they may be, and as an artist you should be aware that you can protect yourself through standard legal agreements that can minimize your financial risk, going forward. A good illustrative understanding between the gallery and you, the artist, provides effective communication if a misadventure occurs.
As a side note, I would rather work with a gallery owner that considered you, the artist, a member of the gallery team, compared to a simple saleable asset.
There is also a common courtesy presented by a gallery owner or group of gallery owners, where they understand that the artwork belongs to you the artist, but you the artist cannot understand nor are you privy to the financial agreements that happen to exist between the gallery's creditors, any third party financial agreements between the creditors themselves, any silent partners and, or the owner. If you do not have a solid signed legal document that protects your artistic interests financially, then you as the artist must cover the associated risk regarding any financial collapse, any natural disaster, and any possible theft. This does not imply that a gallery owner is untrustworthy; my comment simply implies that you do not know what legal movements any creditor's Counsel may have within their legal knowledge base that could possibly affect your image inventory, or seize your inventory, until you present your legal ownership document.
A few artists may dismiss this "Transfer Agreement and Record" issue, since they may not believe their artwork to be valuable enough to warrant such a document, or they may be convinced by the gallery that such an agreement may hinder a sale to a client, especially when the agreement states that the image shall not be reproduced by the new owner. Everyone has their own tolerance level regarding legal documentation, everyone has their own artistic motives while wanting artistic exposure, and everyone has their own assigned risk level. That decision and the consequences of that decision can only rest with the artist.
Here are a few sites that should allow you to see a few example documents:
Though as far as I understand from these examples, transfer agreements are used for sales, not for lending to galleries for the purpose of selling. Is there an agreement that specifies what the gallery is obligated to do when it takes on an artist's work on loan?
A selected document, or a combined document, must be modified by your Counsel to accommodate your images, while they are in the gallery's possession...
Wordsmithing should be very succinct, indicating that you own the images and that your images are retrievable upon any financial issue, and you should be prepared to accept any insurance costs associated with your artwork while they reside within the gallery, since most galleries cannot afford the commercial insurance values assigned to their floating inventory.
If you have a moment, I would spend a few dollars with your Counsel to determine your document's most effective verbiage.
Gabriel, what you want is a consignment agreement. Do a Google search on the words art gallery consignment and you'll find several. Also, your rights vis a vis other creditors of a gallery in the event of bankruptcy will depend on Israeli law. In the US, for example, some but not all states have apparently passed laws dealing specifically with the rights of an artist when a gallery bankruptcy occurs. Israel is a mixed common law and civil law jurisdiction, which means that US law, and in particular the views of a high percentage of the people on this forum, are irrelevant and quite possibly just plain wrong.
None of this has anything to do with agreements to sell photographs, which may or may not contain terms reserving certain rights to the photographer on the sale of a photograph.
Unfortunately, a few artists and even those that believe they understand the business of art, or believe they have good business acumen, may not be familiar with any laws that govern a consignment, especially when consignment laws vary from location to location, and country to country, and when the consignment documents are written by the gallery's Counsel. Any artist that fails to follow the artist's corporate Counsel's advice, may discover that they could be regulated to a non secure status, causing the artistís images to become part of the gallery's inventory, and therefore subject to any judgement enforced by the gallery's creditors. Consignment agreements are not worth the toilet paper they are written upon, because they must be heavily appended with counter wordsmithing to offset protective and often prohibitive text embedded within a gallery's consignment document.
The only authoritative source regarding a consignment agreement will be the artist's Counsel, specific to their country of origin, and where Counsel is capable of understanding the legal ramifications for their client, especially when their artwork migrates into foreign territory.
That said, expensive litigation may be avoided with proper legal documentation, prepared by Counsel that elevates the effective documentation above a useless consignment agreement, whether the TAR agreement addresses the sale of the artwork, the liability of the gallery while possessing the artwork, the legal ownership issues and, or addressing any capitalization costs incurred by the gallery owner while the gallery possesses the artwork.
Again, effective business acumen should be obtained by any artist that has a desire to protect their investment, where they should seek the advice of Counsel, going forward.
This is a matter of bankruptcy legislation and ranking of creditors on insolvency. The position of an artist on the bankruptcy of a gallery is determined by the legislative scheme and the agreement, oral or written but preferably the latter, between the photographer and his gallery.
I know, as a Canadian lawyer who has spent time in Israel and who is in contact with Israeli law professors, that I am not qualified to say anything about the Israeli bankruptcy regime, especially because the Israeli legal system is simply not the same as the system where you and I live nor where the vast majority of the participants in this forum live. If others want to express opinions, that is their business.
I would like to point out that the agreement between a photographer and his gallery and the agreement between a photographer and someone who buys his work are conceptually completely different. Confusing them is not helpful.
I also don't think that this is nearly as complicated as you seem to believe. When I read your thread on the insolvency of your own gallery, I figured that it would get sorted out fairly quickly and it wasn't quite clear to me what all the drama was about. I suspect that if Gabriel asks around the arts community in Israel, he will find that this is all pretty straightforward.
Last edited by r.e.; 31-Jan-2010 at 14:25.
I'd like to add that I recently purchased three prints by living photographers from a major New York gallery, costing many thousands of dollars, without getting involved in the kind of rigamarole that is implicit in your posts. Had I been presented with certain of the draft agreements in the links that you have provided in this thread, which I was not, they would have killed the transaction. Without wanting to be disrespectful, I don't think that you understand how the relationship between collectors, gallery owners and artists, at least ones who command significant sums for their work, plays out in practice. In my guise as a collector, some of the draft agreements to which you referred just come across as amateurish and quite disconnected from the reality of how the relationship works.
In fact, in all the years that I have been buying serious art, both from well-known galleries and directly from artists, I have never been presented with pages of legal verbiage to sign. In this country, it is a given that the artist retains copyright. It is also in my interest, indeed an honour, to co-operate if an artist wants a piece that I have purchased for an exhibition or a book, which has happened and I hope will happen in the future. It doesn't exactly hurt the value of the pieces that I own if they wind up in a book or an exhibition catalogue. Etc.
A lot of this is, for a given jurisdiction, pretty simple law, and beyond that, common sense and common courtesy.
Last edited by r.e.; 31-Jan-2010 at 15:10.
You might want tot check out the book/CD titled "Business and Legal Forms for Photographers" by Tad Crawford. One of the forms (available as a PDF and Word document on the CD) is a "Delivery Memo". This form has lines for each item and its value/description/... that is being delivered to the gallery (or anyone else) along with a space for a signature from the recipient.
You could probably do this on a napkin if pressed, but you come across much more professionally if you have a "real" document prepared. The main point is to describe the work and its value and have signatures. That will almost always hold up in court.
Museums and many reputable galleries will have their own versions. But it is surprising how many galleries do not.
The only person dramatizing this thread happens to be yourself. Go figure...
I find it amazing that you could degrade this thread so quickly with personal artefacts.
I could care less about your personal opinion regarding yourself, your continuous energetic diatribe about how important you think you happen to be, or your misdirection of information, that happens to be a weak link to protecting your investments. Engage me if you must, but I do not consider an open debate with you to be important nor should anyone else.
I find it foolish...