Should Artists Be Expected to Pay the Gallery's Deductible? http://bit.ly/1UkcpLR

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Comment by Harriete E Berman on February 24, 2016 at 3:08pm

Martha Giberson left an excellent comment on ASK Harriete with additional deductible  issues I didn't consider. Here is one sentence.

"Further is their deductible per item or is it for the year? So if they have loss/theft of $5,000 for the year then their deductible is met at the first $1,000 not per item. Does that mean on the those first items or artists are at risk, or all artists get to not be paid because they signed this clause despite the $1,000 threshold being reached and exceeded? "

When you study the situation closely it is easy to see that the artist paying the deductible doesn't work at many levels.
Link below to the comment, just in case (my link above doesn't work.)

http://askharriete.typepad.com/ask_harriete/2016/02/should-artists-...

Comment by Harriete E Berman on February 24, 2016 at 3:01pm

I wrote the post based on a real life scenario and sincere dilemma  by an artist/maker. The person was questioning the fact that the gallery was subtracting their $1,000 deductible from insurance compensation for loss or damage, but didn't know what to do.

The post and subsequent discussion empowered the artist to renegotiate the contract striking out the clause about the deductible.  That in itself is good, but there are still all the other artists in the exhibition, or out there in the art/craft world that may not have the business experience, acumen, confidence or savvy to renegotiate a contract. 

This is just one example where a standardized consignment contract with equitable terms would have avoided  the situation, but sadly despite years of effort, a standardized Consignment Contract like the one in the Professional Guidelines has yet to be adopted by the arts and craft community.

To many artists and makers eager for an "opportunity" are willing to accept less equitable terms. Or simply don't know any better.

P.S. Thank you to everyone who has voiced their opinion in this discussion.  

 

Comment by 2Roses on February 24, 2016 at 1:14pm

Brigitte, you've touched on a fundamental point of artist psychology that makes creative folk so much more vulnerable to these kinds of deceptive business practice. We tend to be altruists and we're prone to self-delusion. Yeah, I know, these are very broad generalizations and there are some of us who don't fall into either camp. We can argue that another day. 

The point is that many of us, as you rightly point out, would only see getting into a gallery - any gallery, under any circumstances.  That's when altruism and self-delusion kick in to fill in the blanks and extrapolate a bad deal as "opportunity". 

You know I have advocated business education for artists for a long, long time. Artists should look at galleries as business partners and treat them as such. Particularly so if the artist is placing work in the gallery on consignment. As such, the artist just became a financial investor in the gallery. With that idea in mind, now let's have a discussion on risk mitigation.  To be clear, I am not interested in gallery-bashing. I am interested in good business practices that result in profitable revenue to both the gallery and its stable of artists. 

If anything, this latest trend undermines the relationship between artist and gallery, pitting their financial interests against each other. That is not the basis of a good partnership. 

Comment by Madelyn Smoak on February 24, 2016 at 11:13am

This seems dubious at best. It is this kind of thing that makes me focus on selling online  rather than through galleries, especially those far from my studio.  No way would I participate in this foolishness. 

Comment by Brigitte Martin on February 24, 2016 at 10:58am

2Roses - I couldn't agree with you more. You may not have seen my earlier post further down the discussion in which I say that I am NOT ok with this new practice at all and why:

.... insurance is a business agreement between the gallery and their insurance provider, NOT between the gallery and the artist.

I thought this would state my opinion on the matter clearly, but apparently I wasn't explicit enough, so allow me to restate: I am not ok with this, I would not sign such a contract, I think it is wrong. Thanks for coming up with the word "predatory" - this is exactly what it is.

However, as we all know, we can group together and demand things until we are blue in the face, it doesn't mean they will actually happen. Not everybody sees things our way, no matter how reasonable the argument. So in light of that reality, I opted to chose the word "opportunity" - not because I think it is one, but because I wanted to express that this is what some artists will think it is. Sorry for the misunderstanding.

Glad to have the discussion, it's important.

Comment by Irene Pierce on February 24, 2016 at 10:19am
There is no way that I would agree to something like that. I would have to ask myself what's the owner up to, and take my pieces and run! Aside from a situation such as that, Anytime there is something in a contract that I am not agreeable too, I talk to the owner, we mark it out, I take pictures of all contracts that we sign so I have records of them, and I keep a hard copy on file also.
Comment by 2Roses on February 24, 2016 at 9:57am

This is simply fraud masquerading as insurance. Fraud on the part of the gallery. Fraud on the part of the Insurance company. 
Brigitte, I feel your argument that each artist is free to assess the "opportunity" is specious at best. 

There is a common rhetoric used in this country, parading around as " free market freedom of choice" which is just code for predatory business practices, of which this latest ruse is one. Equivocating on this deceptive use of language perpetuates it. To your credit you do say that this is bad deal, but then......

There is no "but". This is a bad deal. It is not an "opportunity" (at least, not for the artist). 

U.S. artists, do you know that other countries are WAY ahead of you in organizing bargaining collectives and unions? Yes, Artist Unions!  Its time to have that discussion.  

Comment by Brigitte Martin on February 23, 2016 at 4:54pm

1) What if the price of an item is less than $2,000 retail /$1,000 wholesale? What if the gallery chose to have a $2,000 deductible? or a $5,000 deductible? Where would this stop? As always in life: read the fine print, don't sign what you don't understand or want to agree on. As long as a paper isn't signed it's not a contract yet, only a base for negotiation. Each side negotiates to their advantage.


As an artist isolated in the studio, sometimes we are confronted, or confounded when presented by requests, mandates that are outside of our experience. Where do we turn for our questions? A lot of people go on the internet with their questions, for better or worse, to seek solace among their peers. I understand that this can be helpful for a quick check-in when you find yourself unsure. However, if a situation gets serious I think it's better asking advice from someone who is licensed to practice law. If you needed brain surgery, you wouldn't ask your friendly neighborhood podiatrist to do the job.

 
Aren't we all afraid to turn down an opportunity? It's a risk assessment. If you are ok with taking on certain risk everything can be an "opportunity." If you are not ok with taking on risk, it is not. I am not saying it is fair or right to put an insurance deductible on an artist, and if I were the artist I would not agree to it, but the decision to do this or not is ultimately each person's to make. We live in a free market economy, not every little detail of our lives can or should be determined by laws and regulations. We have free will to decide against negotiation/contracts. If you think the risk is too high, then you may be better off letting someone else take on that risk and step away from a so-called "opportunity" that you deem one-sided/unfair. We can and should write down better business practices and advocate for awareness, but we cannot make anyone follow them. If enough artists say NO to unfavorable contract details, then the gallery side will have to rethink their view. If enough people think the risk of taking on the insurance deductible clause is acceptable, then maybe the accompanying risk really is low enough for most. We don't have to agree with either side, we just have to pick one.

Isn't it scary to negotiate a contract? Possibly. But if you are not willing to look at scary processes and get involved for your business' sake then get a lawyer or accountant to do it for you - or stay away from running a business. It's our own responsibility, not anyone else's to look out for dips down the road.

Will we look greedy or ungrateful if we say no? Who cares how you "look." Stand up for yourself and state what you can or cannot accept. Step away from a potentially incalculable situation, it's a choice you actually have. View yourself as a smart business person, not as a victim of circumstances outside of your control.

Ultimately, I feel like artists don't have enough collective power.  The question always is who has the more powerful lever to move things into the direction they want. As we all know, there are more capable artists than good opportunities so the other side's lever seems stronger. However, if your artwork is exceptional/the right fit for the occasion and nothing comparable can be found, your lever is going to be more powerful.


Art organizations are working for us like a "union" but offer perks rather than power. Art organizations have missions which they must follow. I suggest people find an organization that has the mission they need. Maybe that is a trade organization rather than an art organization. In the end, a lawyer can help real well in lots of tricky situations.

Comment by Harriete E Berman on February 23, 2016 at 4:44pm
Comment by Harriete E Berman on February 23, 2016 at 4:37pm

I agree with all the points made by Brigitte Martin.

It makes absolutely no sense to me to shift the responsibility of the insurance deductible to the artist. This is explained in the post on ASK Harriete.

In addition, I offered two more hypothetical examples:
1) What if the price of an item is less than $2,000 retail /$1,000 wholesale? 


2) What if the gallery chose to have a $2,000 deductible? or a $5,000 deductible? Where would this stop? 

I hope everyone takes a moment to read this short post and opens a discussion here.

I will add one more point that I think ties into the value of discussing the issue. As an artist isolated in the studio, sometimes we are confronted, or confounded when presented by requests, mandates that are outside of our experience.

Where do we turn for our questions?
Aren't we all afraid to turn down an opportunity?

Isn't it scary to negotiate a contract?

Will we look greedy or ungrateful if we say no?

Ultimately, I feel like artists don't have enough collective power. 
Art organizations are working for us like a "union" but offer perks rather than power.

Raising really tough issues ....

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