Gallery-artist contract: The 10 clauses every gallerist must master

Fifty years on, gallery-artist contracts remain one of the most poorly mastered instruments in the sector. Many galleries — including experienced ones — still operate with models downloaded online, emails serving as commitments, or verbal agreements renewed year after year. The CPGA (Comité Professionnel des Galeries d'Art) barometer regularly reveals that commercial disputes between artists and galleries rank among the leading sources of litigation in the sector. The stakes are not merely legal: this is a matter of trust, sustainability, and mutual respect within a relationship that shapes the careers of both parties.

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01Consignment: laying clear foundations for who owns what

The foundation of any gallery-artist relationship rests on a legal principle that is simple but often poorly articulated in contracts: the gallery does not purchase the works, it takes them on deposit. This consignment mechanism means that the artist remains the owner of their work until the actual moment of sale. That seems obvious — until a gallery goes bankrupt, as happened with Knoedler & Company in 2011, or until a dispute erupts over liability for a work damaged in storage.

The consignment clause must therefore specify who bears the insurance costs (standard practice in France places this on the gallery), under what storage conditions the works are kept (humidity, temperature, UV protection), and what regime applies in the event of loss or deterioration. The ADAGP recommends attaching a detailed condition report, signed by both parties, for each consigned lot. This document, often overlooked by mid-sized galleries, is nonetheless the cornerstone in any dispute.

Under French law, it should be noted that the consignment arrangement is not governed by a text specific to the visual arts sector — it falls under the general law of agency (articles 1984 and following of the Civil Code). You must therefore ensure that the contract explicitly qualifies the relationship as a sales mandate, rather than a deferred firm sale, to avoid any fiscal or accounting ambiguity.

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02Commission and price-setting: beyond the 50/50

The 50/50 split between gallery and artist is often presented as a universal standard. It is a simplification. At Hauser & Wirth or Marian Goodman, leading artists negotiate splits of 60/40 in their favour. In emerging Parisian galleries — those in the Belleville neighbourhood or the 13th arrondissement — the commission can rise to 60% for the gallery, on the grounds of substantial promotional investment.

What matters more than the gross percentage is clarity about what it covers. The commission clause must specify whether framing, transport, installation, professional photography of the works, or exhibition catalogue costs are deducted before or after the split — or whether they are borne entirely by the gallery. Without this precision, some galleries have retrospectively billed artists for "promotional fees," significantly reducing their net income.

Pricing policy also warrants particular attention. The clause should indicate who sets the sale prices, to what extent they may be modified (discounts granted to collectors, negotiations at fairs), and whether the artist must be consulted or merely informed. Emails revealed during a 2012 legal proceeding involving Gagosian showed that significant discounts were granted to institutional buyers without notifying the artists — a contested practice but difficult to challenge without an explicit contractual clause.

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03Exclusivity: protecting without suffocating

Exclusivity is the clause that most often crystallises tensions. Its logic is understandable from the gallery's side: if it invests in an artist's production, finances their exhibitions, takes them to international fairs from Basel to Frieze Seoul, it wants to ensure a return on that investment. But phrased too broadly, it can paralyse an artist for years.

There are three forms of exclusivity to distinguish carefully. Territorial exclusivity — the gallery represents the artist in France, or in Europe, while another gallery covers the United States — is the most reasonable and most common form in shared representations such as those organised by Perrotin or Templon across several continents. Exclusivity by medium — the gallery holds exclusivity over paintings but not editions or sculptures — is more subtle but can generate conflicts if the artist develops hybrid projects. Total exclusivity, finally, the kind practised by galleries like Marlborough at the height of their power in the 1960s and 70s, is today considered abusive in most contexts.

The question of online sales complicates the picture further. Since the rise of specialist online platforms, Artland, and direct sales via Instagram, an exclusivity clause drafted before 2015 may prove silent on these channels. Modern drafting must explicitly include or exclude digital platforms from the scope of exclusivity — and specify what happens if the artist sells through their own website.

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04Promotional obligations: what the gallery is actually committing to

This is one of the haziest areas in current contracts. Galleries generally agree to "promote" the artist — a vague formulation that says nothing about the guaranteed number of annual exhibitions, participation in fairs, the marketing budget allocated, or the possible production of a catalogue.

A well-drafted contract should specify a minimum number of exhibitions (one solo show every two to three years is a reasonable standard for a mid-sized gallery), list the fairs at which the gallery commits to presenting the artist, and clarify who finances the catalogues and on what timeline. These commitments constitute a direct counterpart to the exclusivity granted by the artist: if the gallery fails to honour its promotional obligations, the artist must be able to invoke this failure as grounds for termination.

Legal proceedings have been initiated on precisely this basis, notably in France, where artists have sought the termination of exclusivity contracts on the grounds that the gallery had not organised an exhibition in more than four years. French courts have generally recognised this right to termination, but only when specific commitments had been set out in writing. Without that, proving the failure becomes nearly impossible.

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05Payment timelines and the fate of unsold works

The Art Basel/UBS 2023 report highlights that payment timelines are one of the primary sources of friction in gallery-artist relationships, particularly in small and mid-sized galleries. In France, the LME law sets a maximum payment period of 60 days from the invoicing date between professionals — but the gallery-artist relationship often falls outside this regulation, since the artist is not always classified as a "supplier" in the strict sense.

The payment clause must therefore explicitly fix the deadline for remitting funds to the artist after the sale price has been received (30 days is a reasonable standard), provide for late payment penalties calculated at a specified rate, and organise the terms of payment in instalments if works are sold on credit to collectors.

On the question of unsold works, several points must be addressed: the deadline beyond which the artist may request the return of their works (generally 90 days after the close of an exhibition), who bears the return transport costs, and in what condition the works must be returned. The 2020 pandemic exposed a glaring contractual gap on this point: many galleries retained works for several additional months by invoking force majeure, without their contracts having anticipated such a scenario.

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06Intellectual property: who can reproduce, and for what purpose

The question of image rights has become central as galleries have developed their digital presence. Who may reproduce a work — and in what context — engages moral and economic rights that the French Intellectual Property Code protects in a particularly robust manner compared to American law.

In France, the artist's moral right is inalienable: even if a gallery purchases a work, it cannot reproduce it for commercial purposes without the author's agreement. The intellectual property clause must therefore precisely define the permitted uses: the gallery's institutional publications, press files, social media, exhibition catalogues, any potential merchandising. It must also specify whether these rights expire at the end of the contractual relationship or persist for works sold during the term of the mandate.

The ADAGP manages the collection of reproduction rights on behalf of visual artists in France — any commercial use of a work must in principle give rise to a declaration and payment of rights. Galleries that reproduce works extensively in their marketing materials without a clear contract with the artist expose themselves to retrospective claims.

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07The resale right and the termination clause: two essential protections

The resale right, established in France as early as 1920 and harmonised at the European level by the 2001 directive, guarantees artists (and their heirs for 70 years) remuneration upon the resale of their works on the secondary market. Its rate is degressive: 4% for resales between 750 and 50,000 euros, then progressively reduced to 0.25% beyond 500,000 euros, with a cap of 12,500 euros per transaction. This right is mandatory and non-transferable — you can neither eliminate it nor transfer it by contract.

That said, some contracts include supplementary clauses on private resales arranged by the gallery itself, or on auction participations that the gallery might solicit on behalf of a collector. These mechanisms, which are legal, must be transparent.

As for termination, this is the clause everyone drafts while thinking they will never need it — until the day it becomes the only lifeline. It must provide for reasonable notice (three to six months for an established relationship), specify the grounds allowing immediate termination without notice (fraud, insolvency, serious breach), and address the fate of consigned works, any advances that may have been paid, and exhibitions in progress. The clause must also specify what happens to works that have been sold but whose payment has not yet been received at the time of the break — a situation that the Marlborough/Rothko affair illustrates in a particularly painful way.

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08Dispute resolution: choosing the right forum before the conflict arises

When a dispute occurs, the question of which jurisdiction to bring it before can matter as much as the substance of the dispute itself. International galleries — Gagosian, White Cube, Pace — systematically insert jurisdiction clauses in favour of the courts of New York or London. For a French artist working with such a gallery, asserting their rights before a foreign jurisdiction represents a considerable cost and complexity.

The current trend in well-drafted art contracts is to provide for a mandatory preliminary mediation phase before any judicial recourse. The CMAP (Centre de Médiation et d'Arbitrage de Paris) regularly handles gallery-artist disputes and can often resolve conflicts within a few weeks at a cost far lower than that of civil proceedings. This approach also preserves the commercial relationship — or at least avoids destroying it publicly — which matters in a sector where reputation travels fast.

If arbitration is preferred over mediation, the clause must specify the applicable rules (ICC regulations, CMAP, or otherwise), the number of arbitrators, the language of the proceedings, and the seat of arbitration. A vague arbitration clause — "any dispute shall be resolved by arbitration" with no further detail — is often unenforceable or itself generates a first dispute over the procedural terms.

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09Drafting the contract as a long-term act

The relationship between a gallery and an artist can last ten, twenty, thirty years. Some are foundational collaborations: the Chantal Crousel gallery has worked with artists such as Hito Steyerl and Danh Vō for decades, building international careers together on a foundation of mutual trust and shared investment. Others come apart after two exhibitions, not for lack of goodwill, but because expectations were never articulated.

A contract is not an instrument of mistrust. It is an act of clarity. The gallerist who takes the time to draft precise clauses — on consignment, commission, exclusivity, reciprocal obligations, image rights, payment timelines, and exit terms — is in fact building a foundation of trust, not armouring themselves against the other party. Artists who work with serious galleries know how to tell the difference between a contract that seeks to protect them and one that seeks to trap them.

Engaging a lawyer specialised in art law — a professional who knows both the Intellectual Property Code, the practices of the market, and the specificities of the gallery-artist relationship — is not a luxury reserved for mega-galleries. It is a reasonable expense that, measured against the duration and potential value of a ten-year artistic relationship, represents one of the best investments a gallery can make. The Rothko affair, in the end, says it better than any legal textbook.