Friday, March 18, 2011

Liability in Oregon

According to Oregon Statues 359.200 to 359.255, “'Art dealer'” means an individual, partnership, firm, association or corporation, other than a public auctioneer, that undertakes to sell a work of fine art created by another."

Section 359.210 (c), states: "A consignee [the dealer] is liable for the loss of or damage to the work of fine art while it is in the consignee’s possession where such loss or damage is caused by the failure of the consignee to use the highest degree of care. For the purpose of this subsection, the value of the work of fine art is the value established in a written agreement between the consignor and consignee prior to the loss or damage or, if no written agreement regarding the value of the work of fine art exists, the artist’s portion of the fair market value of the work of fine art."

And, furthermore, in 359.230: "Any provision of a contract or agreement whereby the consignor waives any of the provisions of ORS 359.200 to 359.255 is void. [1981 c.410 §7]."

Meaning, at least in Oregon, anyone showing or offering your work for sale -- regular art dealer, nonprofit gallery, virtually anyone acting in the capacity of art dealer -- is liable for the damage or loss, under normal circumstances, and anything that person makes you sign to the contrary isn't worth the paper it's written on.

I believe that you cannot sign away a right a law gives you, in this or any other state. I have a sharp lawyer looking into this whole question of liability for art work and will report on what I learn later.

Liability in Montana

According to lawyer Bill Frazier, writing in the March/April 2011, Montana Arts Council's State of the Arts, "In Montana, anyone taking possession of an artist's artwork, for show, sale, auction, gallery display or any other purpose, is liable for it, whether there is insurance coverage or not, and the liability cannot be waived by the artist."

Frazier, in private practice, was chairman of the Montana Arts Council for years.

Wednesday, March 2, 2011

More on Gallery Liability

I'm still troubled by the information I got from the lawyer recommended by California Lawyers for the Arts. It doesn't jibe with what I had heard in various workshops and read elsewhere. I'll have to look into the matter further. In California at least, the law is pretty clear about artwork in a dealer's care.

According to California codes Civil Code, Section 1738.6 (c) an art dealer who takes in works by an artist on consignment is responsible for the loss of or damage to the work of art. It reads in substantial part:
(a) The art dealer, after delivery of the work of fine art, shall
constitute an agent of the artist for the purpose of sale or
exhibition of the consigned work of fine art within the State of
California.
(b) The work of fine art shall constitute property held in trust
by the consignee for the benefit of the consignor, and shall not be
subject to claim by a creditor of the consignee.
(c) The consignee shall be responsible for the loss of, or damage
to, the work of fine art.
...

It goes on to state in Section 1738.8:

Any provision of a contract or agreement whereby the
consignor waives any provision of this title is void.

In plain English this means that a dealer is responsible for what happens to your work while it is in her/his custody and anything the dealer makes you sign to the contrary isn't worth the paper it is printed on.

Why this should not apply to a non-profit art center -- which is acting as a dealer when it accepts your work for a show from which it can be sold -- I don't know.

I don't want things to be harder for non-profit art centers, but my main concern is the individual artist. Even if it is true, as the one lawyer told me, that insurance for the individual artist is cheap, allowing the art center to absolve itself from all responsibility is disrespectful toward the artist, and, as I mentioned before, only encourages carelessness and poor security from the center.

In my opinion, forcing the artist to sign a release of liability only further marginalizes the artist and the value of his/her work. If the law is indeed what the one lawyer said it is, wouldn't it be so much more respectful for the center to say something like this: "We have a very meager budget but we value your work highly and will do our very best to see that it is not damaged, lost or stolen. If, in the unlikely event something should happen to it, we will work with you to make it right to the best of our ability."

Comments and information welcome.
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