Chapter 2: Of Creations and Contracts

Pranita Koechraker
Pranita Koechraker illustration

The wait is over: art lawyer extraordinaire Mekhala Dave writes the second chapter for her series on for The Yellow Sparrow! Look out for more from her.

“What do you do?” is a perplexing question, often, to those of us having manifold facets of our self-identity. Some of us choose to sweep the question off under the garb of the word ‘Artist’ and the others surrender with a mumbling occupational title such as a ‘Designer’, ‘Academic’ or ‘Engineer’. What is this self-identity in the social context? When we identify with our core being, potential and belief-systems, and extend respect to others. Essentially, we are all creating every day and we should submit to the idea that we have multiple interests that shape our self-identity.

While on our journey to replaying answers to the daunting words ‘Who am I’, creations fuel our self-worth and situate self-identity in our society. In the last chapter, I mentioned,

Art and artists operate as one entity in the power house of creation.”

Creation is a psychosomatic requisite. When the need is met, there is a tenacious satisfaction. We are all but vulnerable to creativity. Creations have an infinite prowess of marking our survival and live beyond our existence.

Asha, architect and photographer from Berlin, elicited an alternative outlook to creations from self-worth. She mentioned the landscape of art-making and accessibility of artists to audiences varies from gallery exhibition and workshops to social media presence. While galleries account for direct visibility and unwavering interaction with artists, social media is comparatively more sundry. Social media has taken to inviting positive but also negative responses, involuntarily.

“If I upload my personal artworks there, I am subject to scrutiny and I subsequently hunger for the number of ‘likes’ validating me. I wish to cleanse from this process.”

She now resorts to using Instagram with a mystical persona as she wishes to understand the worth of her art by allowing users to react to them without associating it with her identity.

Mekhala Dave art law

In fact, William Faulkner classically in an interview noted, “The artist is of no importance. Only what he creates is important, since there is nothing new to be said. Shakespeare, Balzac, Homer have all written about the same things, and if they had lived one thousand or two thousand years longer, the publishers wouldn’t have needed anyone since.”

The choice is of the artist, in whichever direction she steers, the creation is released into the art market. When an artist has created a work, what is to be done with it? Once the artist creates her work, she needs reception from potential audiences and when she decides to make a sale through her art, she decides to enter the art market. The art market is the principal medium for the distribution of art and the compensation of artists. The dealer and/or gallery acts as a mediator to the entry into the business for consignment/purchase and exhibition contracts.

The art market is split into two major sectors, primary and the secondary market. An artist can enter the primary market by directly having an interaction with her friends or clients by receiving them at her own personal studio or attending art fairs or workshops. Most artists are reluctant to participate in the secondary market directly as they are required to deal with burdensome tasks such as arranging exhibitions, cataloguing and transportation costs. Through the secondary market, they have entered the realm of business and hinge on the judgment of dealers/galleries. The artists want someone not only to handle the business aspect but also one who respects and appreciates their artworks.

Don Thompson, a dealer-gallerist, echoes New York’s Marian Goodman in his book stating that she insists to call herself as a gallerist instead of a dealer because a gallerist represents artists and a dealer represents a work. More notably he mentions that art dealing is a way of proving superior aesthetics and displaying better negotiation skills. However, the lines are not blurred between dealers and galleries as each of them have differing business models with diverse group of contacts and inventory of artworks. For example, in New Delhi, Khoj or Foundation for Indian Contemporary Art support artists through research grants and residencies, and initiate educational activities, whereas Delhi Art Gallery interacts with collectors through frequent auction rounds. Internationally, Gagosian represents well-known artists and Mitchell-Innes & Nash specialises in artists’ estates.

This also reflects how artists and dealers/galleries require one another to participate into the art market. Moreover, apart from being commercially oriented, this relationship appears to depend on mutual expectation or is a marriage of considerable convenience. The dealers/gallerists carry out basic duties on behalf of the artist for consignment/purchase and exhibitions that are heralded under contract laws across jurisdictions of various countries.

Mekhala Dave art law

In India, Section 182 of the Indian Contract Act, 1857 governs the principal-agent relationship where the agent is a person employed to do any act for another or to represent another in dealings with third parties and the one who is represented is the principal. The principal-agent relationship embedded in the Section places fiduciary perspective into discharging the artist-dealer/gallery relationship. Legally, an artist and dealer/gallery have a fiduciary relationship. The definition of fiduciary relationship is

“a relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client that requires the highest duty of care”

and alternatively,

“[…] the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.”

This definition encompasses the artist-dealer/gallery relationship which observes co-dependency through mutual faith and trust.

To delve into the concept of trust, it is best to quote psychologist David Destefano who iterates the relationship of an artist and dealer/gallery which is

“trust implies a seeming unknowable – a bet of sorts, if you will. At its base is a delicate problem centred on the balance between two dynamic and often opposing desires – a desire for someone else to meet your needs and his desire to meet his own.’’

He further reinstates that trust characterises a risk factor when finding our own and others’ competing desires. The artist has a compelling need to exhibit her art piece and the dealer/gallery pivots upon her art pieces to enter the art market stream. A trust springs in the ‘handshake deal’ which symbolises a casual understanding between the artist and her dealer/gallery. Art law pioneer John Henry Merryman insists that even through the ‘handshake deal,’ a contract is implied and that artists’ recoil from the idea of an express contract because they do not want to commercialise or be a “sell out” in the market that tampers with their creative process.

In India, there neither appears any governing statute to indicate the relationship between artist and dealer/gallery, nor dictate any guiding legal models that outline this relationship. Artists and dealers/galleries use the traditional ‘handshake deal’ to seal an ‘understanding’ since the art market in India has not realized the importance of legal enforcements with an emphasis on artists rights and their protection.

In practice, an express contract in writing helps to render an enforceable commitment from both the parties. This ensures that certain angles of business mandates such as promotion, reproduction, pricing et cetera are sheltered and avoids artist–dealer/gallery disputes. However, prior to signing any contract, from thorough reading to realizing benefits, in equal measure between both parties, is of utmost importance. In our desire to realize our self-worth, we fervently guard our creations on a subconscious level. Protection of creations becomes a necessity and, by an extension, levies a defensive net for our self-worth. So, why not further protect the worth of creation when tainted with commercialization or its entree into the art market stream?

Bibliography

1. William Faulkner, The Art of Fiction No. 12, The Paris Review.

2. John Henry Merryman, Albert E. Elbert, Stephen, Law, Ethics and the Visual Arts, 2007, pp. 849.

3. Don Thompson, The 12 Million Stuffed Shark: The Curious Economics of Contemporary Art, pp. 29

4. Daniel Grant, ‘Like it or not, artists are married to their dealers’, Huffington Post, June 9, 2010, available here.

5. Section 182 of the Indian Contract Act, 1872 for principal-agent relationship.

6. Black Law Dictionary 7th ed., pp. 640. An extension of the definition is: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.

7. Corpus Juris Secundum, Vol. 36A, pp. 381.

8. David Destefano in The Truth about Trust: How it determines the success in life, love, learning and more, New York : Hudson Street Press, 2014.

9. John Henry Merryman, Contracts and Understandings, Law, Ethics and the Visual Culture, 5th ed. (2007), pp. 852.

As before, you may approach either us at The Yellow Sparrow or Mekhala personally (for lawyer-client privilege of confidentiality) at mekhala.dave@gmail.com for your queries and updates; she will get back to you each week with answers to your enquiries.

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