The Importance of Using a Written Contract!

As an artist, Commissions are important, but if the commission involves money that will be paid upon completion of a project, all parties must agree and understand what each is responsible for and when. A written agreement is best.

My wife and I do metal wall sculptures and recently got burned when we neglected to present and get a written contract signed for a $10,000.00 sculpture commission.

The client in question chose from several presentation sketches and work was begun on research and development. Many hours were devoted to phone calls, visits to foundries and studios.

All was wasted when we discovered that what she was requesting would be impossible to complete within her budget. Words were exchanged over the phone.

Requests to get our original presentation materials back were ignored and all parties were left with that sour taste of opportunity lost.

Even if a written “contract” is not obtained, I found that the following two excerpts from a Wikipedia source does define expectations form both parties until one or the other of them declares the job complete, over or null and void.

“In common law legal systems, a contract (or informally known as an agreement in some jurisdictions) is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. The elements of a contract are “offer” and “acceptance” by “competent persons” having legal capacity who exchange “consideration” to create “mutuality of obligation.”^[1]

Proof of some or all of these elements may be done in writing, though contracts may be made entirely orally or by conduct. The remedy for breach of contract can be “damages” in the form of compensation of money or specific performance enforced through an injunction. Both of these remedies award the party at loss the “benefit of the bargain” or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract,^[2] although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.”

“An implied-in-fact contract (A.K.A. “implied contract”) is a contract agreed by non-verbal conduct, rather than by explicit words. As defined by the United States Supreme Court, it is “an agreement ‘implied in fact'” as “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.”

Although the parties may not have exchanged words of agreement, their actions may indicate that an agreement existed anyway.

For example, when a patient goes to a doctor’s appointment, his actions indicate he intends to receive treatment in exchange for paying reasonable/fair doctor’s fees. Likewise, by seeing the patient, the doctor’s actions indicate he intends to treat the patient in exchange for payment of the bill. Therefore, it seems that a contract actually existed between the doctor and the patient, even though nobody spoke any words of agreement. (They both agreed to the same essential terms, and acted in accordance with that agreement. There was mutuality of consideration.) In such a case, the court will probably find that (as a matter of fact) the parties had an implied contract. If the patient refuses to pay after being examined, he will have breached the implied contract.”

Contracts, written or implied needn’t be intricate convoluted devices that only lawyers and judges can interpret! Contracts should include:

• Description of project: Use this description to list what aspects of the work are agreed upon in advance, such as size, colors, materials, etc. It could be specific, for example, “the artist ____ agrees to complete a 48 x 48 inch oil painting on canvas for the client _____, depicting a landscape using mostly brown and sand colored hues.” It could be loose: “The artist _____ agrees to create an abstract painting for the client ______.” If anything is verbally agreed upon, it should also be in writing.

• Timelines for the accomplishment of whatever actions are required, i.e.. research, development, production and final delivery. You should agree upon a completion date for the work, making sure that you give yourself enough time for revisions and drying, if necessary. Many artists also set up a viewing and meeting date for when the work is partially completed.

• Total estimated price, including deposits, payments and taxes, modification, freight and installation charges.

• Payments: It is quite reasonable for an artist to collect 25% to 50% of the full cost of the artwork upfront before beginning the work. This is to protect the artist’s investment in materials and time. It will also eliminate potential clients who aren’t that serious. You should list the total cost of the work, the deposit necessary to begin the commission, and when final payment is due. Final payment could be due upon delivery of the work, or it could be due upon final approval of the client.

• Design concept, including; artists option to alter the design to reproduce as closely as possible to the original concept, dimensions, photos, templates and models.

• Copyright: The Artist shall copyright the Work in his name and the transfer of the Work or title shall not affect the Artist’s rights thereto. The collector/commissioner cannot reproduce the work or its likeness in or on any media or form without the written permission of the Artist. Many clients will assume that since they are paying for the work, they own the rights to it. Unless you are signing over the rights to you work (there should not be any reason for this sort of agreement, normally), you should stipulate that you retain the copyright of the work. This means you can put an image of the work on your website, and use it for portfolios, etc.

• Delivery. Indicate whether you will deliver the work to the client or whether they need to arrange their own delivery.

• Installation. Indicate whether you will install the work for the client, or whether they need to arrange this separately. If you are not installing the artwork for them, you should make sure that it has proper hanging hardware already attached to the work to make it as straightforward as possible to hang.

• Warranties, if any.

By signing this agreement the artist and client certify to have read and understood all conditions and responsibilities applicable to them as outlined in the contract.

Artist: _____________________________________     Date: ____________

Client: _____________________________________     Date: ____________

• Many examples of contracts can be found online and all or parts may be utilized to customize your own personal contract.

Our situation is that now we have no idea whether this client will employ another artist to produce our idea or an offshoot of it, and our only recourse is to sue… never an appealing option.

Customize one from samples or write your own in your own words and have all parties sign it! It will save you many anxious headaches.

I hope that this will prove helpful to alleviate problems and that both you and the person or organization(s) feel comfortable with the decision to produce an art piece.

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