Art commission contracts : between liberty and constraints?

Commissioners of art works have entered rather lately the field of history of art, underlines Adrien Goetz, Associate professor of history of art at the Sorbonne University. Museums do exhibit many commissioned works. For example, the Louvre museum bought in 2002 “Pygmalion in love with his statue”, which had been commissioned by Sommariva. In Washington DC, the National Gallery acquired David’s painting “Napoleon in his working office”, that had been commissioned by the Marquis of Douglas. Nowadays, some collectors are only buyers while others commission works from artists.

The relationship between the commissioner and the artist has become a true topic for both Art historians and lawyers.

It is not rare that some of my clients who are art collectors ask me to follow up their oral commission agreement with an artist during an exhibition opening by a written private commission contract.

Sometimes, it is difficult to persuade the artist to sign such a contract because he may have the feeling to lose his freedom. The fact to materialize the commissioner’s wish by a written contract that the artist would have to sign may be regarded by him as an intrusion into his creative process. It is then the role of the lawyer to understand both parties and to conciliate all legal constraints, which are even more complex in case of public art commission’s agreements…

A private commission contract is going to provide an area of freedom and creativity for the lawyer who will conciliate the rules of the “contrat de louage d’ouvrage” (contract for services), of the assignment of rights, but also those of the contract of sale.

The clauses in Art commission contracts are various. They must in particular include:

  • the obligations of each party (e.g. delivery conditions and deadline);
  • the description of the piece of art;
  • the price (including taxes or not depending on where the commission is formulated);
  • the eviction guarantee (guarantee that the work is original);
  • an assignment of rights clause.

A private commission contract for an art work must respect not only the usual Civil law rules but also some specific rules regarding art works which require some written provisions regarding moral and economic rights of the authors.

The acquisition of the material support of a piece of art work, like a sculpture, a painting or a photography, does not involve automatically an assignment of the intellectual property rights attached to this art work. French law defines precisely the conditions of the assignment of copyright.

Article L. 131-3 of the Intellectual Property Code provides that “the transmission of copyright is subject to the condition that each of the rights assigned be explicitly mentioned within the assignment contract and that the exploitation domain of the rights assigned be precisely delineated with respect to its scope and its destination, in terms of space and time.”

If there is no contract which provides for the assignment of copyright, the price set by the commission agreement in principle covers only  the design and the achievement of the piece of art, but not the assignment of intellectual property rights attached to this work.

Thus, the assignment of the representation right which allows exhibiting the work of art must be formalised explicitly by a written provision. It is the same for the reproduction right which allows to publish reproductions of the work in various ways.

In case of the absence of precise contractual provisions regarding the assignment of the economic rights of representation and reproduction, the author still owns these rights on his work. For example, the reproduction of the commissioned work through post cards without a written authorization from the author might be considered as infringing this work, even in the case of commissioner’s good faith.

The Art commission agreement must take into account the artist’s moral rights. One must remember that the author of an intellectual work is legally entitled to have his work respected pursuant to the Article L. 121-1 of the French Intellectual Property Code. This right includes the right to the respect of the work’s integrity as well as the respect of the work’s spirit.

The respect of work’s integrity implies that nobody but the artist can carry out any suppression, adjunction or modification of the work. For example, in a famous case, the buyer who had removed decorating panels painted by Bernard Buffet from a refrigerator had been sentenced for not respecting the integrity of the art work (Civ. 1st, 6 July 1965, JCP 1965 II 14339).

Therefore, without the artist’s consent, the buyer of an art work is not allowed to destroy or modify it. However, a commission contract can provide clauses concerning a possible modification or restoration of the work.

As for the respect of the spirit of a work of art, it is a matter of utilizing the work in conformity with its original destination.

The right to the integrity and respect of the spirit of a piece of art may in some cases imply that its owner will not be allowed to remove it without an explicit agreement of the artist. The commission agreements often concern artistic works which are supposed to be installed in a specific location. When a work is commissioned in situ, for example a fresco directly done on the wall of an apartment or a house, the commissioner must foresee what will happen if the property is sold. Without specific contractual provisions for such a case in the commission contract, by selling his real estate the buyer may lose his rights on the work.

Furthermore, the usual clauses of commission agreements, such as those regarding the conditions and responsibility of transportation of a work, are particularly crucial for a work of art, given its unique character and the difficulty to determine its value.

Lastly, commission agreements on works of art can also provide for specific clauses related to their authenticity. For some contemporary works, it can even be useful to specify that the work will be accomplished by the artist himself/herself. As a matter of fact, some very well-known artists work with teams and do not always produce themselves their works.

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