< FIXED BUDGET & FIXED FEE COMMISSIONS
CONTRACTS
Contract law varies from country to country, so the comments made here can only be made in very general terms [ref]. Artists awarded contractually binding commissions are advised to undertake some basic background research on local contract and sales law – in some countries a verbal agreement is considered every bit as binding as a written contract, so this may have implications if a seemingly informal spoken arrangement is not later honoured.
When it comes to working with foundries, some of the points made earlier in the SALES & COMMISSIONS page are equally relevant here. To recap briefly, most countries have ‘sales of goods and services’ legislation in place that dictates the form of everyday transactions. Most such legislation places obligations on both the buyer and seller alike. In general, the buyer (ie artist) is required to pay the seller (ie the founder) their asking price in full for services or goods supplied. In return, the seller must provide the buyer with of goods or services of an appropriate quality and standard. These terms apply every bit as much to the founder/artist relationship as they do to artist/commissioning body or any other customer/supplier relationships.
In the majority of cases, the commissioning body, artist and founder are all protected adequately by current legislation. Even with quite high value commissions, it is quite possible to have work cast at an art foundry without drawing up detailed contractual agreements between the various parties involved.
The artist will normally only need to draw up a contract between themselves and the founder (or other supplier), if there are very specific reasons to do so. The most usual reason is that the artist themselves is under contract to their commissioning body and subject to PENALTY CLAUSES. Penalty clauses are the sections of a contract which set out [financial] sanctions in the event of a failure to meet the terms and conditions of the contract. The most common penalty clauses focus on late completion and delayed delivery.
Where possible, artists are advised to negotiate contracts that do not hold the artist responsible for a late delivery by a SUB-CONTRACTOR (a founder or similar service provider may be classed as sub-contractor). Avoiding this responsibility is not always possible, especially if the artist is undertaking a FIXED BUDGET type commission (see previous page), and is therefore effectively being paid to organise the commission’s production schedule.
If an artist is subject to a contract with penalty clauses which could be applied in the event of a sub-contractor’s failure to deliver, it makes sense to impose a similar contractual clause on the sub-contractor who is undertaking time sensitive work on the artist’s behalf. Setting up even a simple contract with the founder may require the artist to seek the services of a lawyer, the cost of which should be allowed for when allocating budget expenditure. Any founder or other service provider must be made aware of any likely contract or penalty clause they will be subject to, before they are asked to supply a firm quotation, not afterwards.
When a contract is required, the terms between an artist and their commissioning client should be as much about protecting the artist’s interests as the client’s. A contract will often set out the artist’s responsibilities and obligations, a time framework and payment details – such as how much will be paid to the artist and when. Other details can include the use of intellectual property (COPYRIGHT), and other related issues such as publication rights.
Artist’s should not fear contracts, but they should take them seriously and read the contents of any proposed arrangement carefully before signing. If any clause is unclear, a clarification should be sought in writing, with any unreasonable clauses challenged. Artist’s should always seek professional assistance if they have any doubts whatsoever about the terms and conditions of a formal contract they have been asked to agree to.
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