Abusive exclusivity clauses: be careful!

Abusive exclusivity clauses: be careful!

Jean Dubreil | Sep 20, 2021 6 minutes read
 

An art gallery offers you an exclusivity? What are the different points to check to avoid scams? Catchment area, number of exhibitions, paid contracts ... all our tips to avoid getting trapped.

Customers are interested in your work

When an art gallery has offered you an exclusive contract, it shows an interest in your work, that's good news, even if it also has consequences. In general, it is always interesting to offer an exclusivity to a merchant, for a specific geographical area, a duration, or a particular type of work. This allows the merchant to have better visibility in the investment he is going to put in your work.
Be careful, however, to check the clauses on which you are committed, and not to give too broad exclusivity to a gallery, in order to preserve your freedom and not to risk disastrous consequences for your artistic activity.

Internet exclusivity: Be aware of the risks

The gallery asks to take control of all your internet sales: this is the most important and total level of control, so you no longer have any possibility of selling without going through this gallery.
Are you being asked to close your site?
Sometimes the gallery asks you to close your website and your profiles on other galleries in order to ensure maximum and exclusive exposure. This is a very heavy decision: by removing your internet presence outside of this gallery, you lose all your SEO and you are then trapped.

Why is this a decision with heavy consequences?
If you close your site or your profiles on other galleries, it will be very difficult for you to go back because SEO will take a long time to rebuild. The situation is comparable to manufacturers who sell sterile seeds at low prices. The farmers who use them are then forced to keep buying seeds again every year ...

Benefits:

  • The profit is essentially for the gallery: it ensure a significant income, and completely locks the commercial policy of the artist without any competition.

Risks:

  • You lose all control of your sales policy, sometimes with the obligation to pay a large sales commission
  • You cut yourself off from exhibition opportunities with other galleries or dealers (who also have websites, and will no longer be able to sell)
  • You can no longer sell to your own customers
  • You lose all the SEO of your website / your profiles on marketplaces or online galleries, which you have possibly taken years to obtain

Advice:

  • Never sign an exclusive on the internet!
  • Make sure that the exclusivity is limited in time
  • If you sign an internet exclusive, never agree to close any of your profiles on online galleries or your website: simply put your works in "not for sale" status. Thus, you always have the possibility of being able to sell your works again in another way in the future.

Territorial exclusivity: the most interesting

The gallery will ask you for an exclusive territory. This is normal because she will be committed to actively selling your work. It is therefore necessary to define the catchment area (city, region, country, etc.).

For physical galleries, this usually means that you agree not to sell your work in the same city, or region. It's rarer for a gallery to request an exclusive for an entire country, as it cuts you off from all other opportunities in that country.

For world exclusives, it is even rarer: it means that you no longer have the right to sell without going through this gallery, whatever the country!

Benefits:

  • The gallery will present your work to its clients, and ensure your promotion in its geographical area

Risks:

  • If another gallery or merchant wants to sell your work in the same area, they won't be able to do so, even though you think they might have been a better opportunity.

Advice:

  • Always check the reputation of the gallery before committing
  • Consult the opinions of other artists about this gallery
  • Never give an exclusivity over a too large geographical area without having tested the collaboration on a local or regional scale
  • We do not recommend signing a worldwide contract with a gallery . So, if the gallery does not meet your goals, you will be blocked and you will not be able to sell outside. Choose a small area, or an area related to the clientele of this gallery.


Exclusivity depending on the type of work: to diversify your distributors

If you produce different types of works, painting, drawing, sculpture ..., or if you produce very different series. You can also offer exclusivity for a particular type of work. Precisely detail the exclusivity of the type of works concerned by this contract in order to properly frame the contract. Indeed if the gallery which wishes to represent you is specialized in the drawing, it will not put forward the rest of your work. It is therefore important not to deprive yourself of the sales that your other works could bring you.

Benefits:

  • The gallery effectively presents a specialized part of your work
  • You keep the possibility of choosing other partners to sell your work

Risks:

  • If another gallery or merchant wants to sell the same type of work, they will not be able to do so, even if it represents a good opportunity.

Advice:

  • Make sure that the gallery has an expertise, and that it is recognized for the type of works you wish to entrust to it
  • Always frame the contract in time and with a geographical limit


Elements to check during your exclusive negotiations

Highlighting your work

Check the number of times that the gallery will organize exhibitions and / or highlight your work in its communication tools (catalogs, newsletter, social networks ...). Don't hesitate to ask for a timeline.

Turnover

If the gallery really wants to work with you, it will commit to achieving a certain turnover over a given period (quarter, year ...) and possibly buy certain works if the figure has not been achieved. If the art gallery refuses or on the contrary asks you to pay to exhibit in the gallery, we do not recommend that you get involved.

The characteristics of the exhibition

The cost of transport, the period of conservation of the works during the exhibition, installation and dismantling of the exhibition, openings, finishings ... all its information must also be mentioned in the contract.

Regarding relations with institutions

The gallery must undertake in case of contact and / or sale with an institution (museum, communication agency, galleries ...) to inform you.

Customer information

The gallery must undertake to give you customer information in the event of a request from an institution to carry out a retrospective on your work, for a catalog raisonné or any other need.

Copyright

The artist must remain the owner of the copyright of his work. If a transfer of rights is mentioned (temporary or not), you must check that it will not be harmful to you in the short or medium term. We advise you to contact a specialist lawyer.


For exclusivity, a contract must be signed specifying all the terms in order to be perfectly framed. You must check all the clauses and especially not sign a unilateral contract of world exclusivity! We advise you in all cases to contact a specialized lawyer, before signing, to ensure that the contract will benefit you and that you retain your freedom.


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