Misunderstandings and disputes often arise when two people interpret the same situation in different ways. Assumptions are usually the root cause; full, frank, and dear dialogue between the parties, especially in contractual negotiations, is the solution. The sale of artwork should be a straightforward commercial transaction; but the sale of work direct from an artist’s studio can be problematic if buyers are not given clear explanations of precisely what they are buying. Consider the respective perspectives.
Many artists never have a gallery or dealer to market and sell their work, and rely upon sales from their studios directly to buyers, particularly during the early years of establishing their practices. And in recent years in the UK increasing numbers of graduating art students have succeeded in selling work directly to buyers at their final degree show, or during their first participation in open studio events. In such circumstances the selling artist will have little or no experience of how to price their work or to negotiate with interested potential buyers. Where the work being sold is unique, problems with buyers tend to relate to achieving full payment; but sale of a work that is, or is intended to become, one of a limited edition or of a series of works can be problematic – if selling artists do not make it absolutely clear to buyers the status of the work being sold.
Artists customarily make it clear to buyers when a work is one of a limited edition, usually by marking each piece with a number: 1/100 would signal the first of a limited edition of 100. Graphic and photographic prints, and cast sculptures, are the most common examples: in the case of prints, the image held by the original screen / plate / transparency / software is used to create multiple originals; similarly, the original mould for casting multiple original sculptures.
A series of works differs from a limited edition: each artwork in the series is unique and not a replica of an earlier original screen or mould; although features of the first in the series may well be repeated, quoted or otherwise reworked into later works in the series. Artists may intend a series of works to be finite / limited in number, or infinite / unlimited. Not all artists make their intentions clear to potential buyers.
Collectors have a legitimate expectation to receive from the seller accurate explanations and assurances about their purchase and its status as a unique artwork, or one of a limited/unlimited series or edition. The market value of the work will be affected by its uniqueness or otherwise: a unique work is likely to fetch more in the secondary market than one of a limited series or edition; work from an unlimited series or edition is likely to fetch significantly less than one of a limited series or edition.
Furthermore, collectors also expect the artist not to replicate a work that has been sold as unique; not to make a series of works substantially derived from a work that has been sold as unique, and not to extend the number of a limited edition or series stated at the time of purchase. Each of those acts by the artist, subsequent to a sale, is likely to reduce the market value of the original, and would be a fraud on the original buyer.
Key questions, therefore, are: what did the artist intend when the work was made and first sold; were those intentions conveyed to the buyer before the sale and, if so, by whom.
Artists and Buyers
Only artists (or their heirs and assigns) have the legal right to reproduce their original works or authorise others to do so, and to amend or alter those works: those rights (copyright and statutory moral rights) last for the artist’s lifetime plus 70 years after death, throughout most countries in the world including the UK. However, good professional practice suggests that when artists have sold work they should seek to meet their buyers’ legitimate expectations, especially in relation to the replication or further development of sold works.
Ideally, artists should always sell their work accompanied by written documentation clarifying to first buyers not only the sale price but also a description of the work, and especially whether it is unique, a limited edition or series, and so on. It is particularly important to do so in the case of work that is, or is intended to become, part of a series because, unlike sales of work from limited editions (where, as noted above, artists usually number each work in the edition and buyers understand this ancient convention), no custom has been established to identify work from an existing or planned series. In the absence of such clarification (ideally written), buyers may legitimately expect the artist not subsequently to develop a series of works and, if that were done, to complain about fraud, misrepresentation and reduction in the market value of their original and – in their terms – ‘unique’ purchase.
And such complaints might legitimately be directed towards the artist, even where the collector did not buy the work directly from the artist. For example: an artist sells a work through a dealer, gallery or auction house; it is sold and resold; then the artist makes and sells a series of works developed from the original. Although there is no contractual relationship between the artist and whoever now owns the original work, that last buyer may legitimately complain directly to the artist.
Whether or not artists and buyers sign documentation clearly addressing these real and potentially problematic issues, it would benefit artists, those managing their estates after death, initial and all subsequent buyers, curators, archivists and art historians, if the artist made clear documentation of their working methods and especially of their intentions for all their works.
© Henry Lydiate 2004
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