We received the penned note from Miranda at the end of a punishing day. It was just two sentences long, but it raised a slew of legal issues and a few other concerns. \u201cI am about to commission a sculpture of my husband, Carlo, for a 10-year anniversary,\u201d she wrote. \u201cAnything I should consider?\u201d We didn\u2019t know Miranda but were happy to assist. <\/p>\n
Miranda stopped by the next day, trailing a hulking personal assistant wearing a blindingly white track suit. She got right down to business. \u201cDo I need an agreement with the sculptor?\u201d she asked.<\/p>\n
\u201cYes, and preferably in writing,\u201d we advised. \u201cIt should include the basic terms, including a description of the sculpture, size, medium, price, and completion date.\u201d<\/p>\n
\u201cWhat if Carlo doesn\u2019t like the finished work?\u201d she asked. \u201cHe\u2019s a man of particular taste\u2014with real conviction.\u201d<\/p>\n
We suggested that the contract should specify that the sculptor perform to her husband\u2019s \u201csatisfaction.\u201d According to the reasoning in the landmark 1940 Illinois case Wolff v. Smith, a client\u2019s satisfaction is subjective and need not be reasonable: \u201cIn contracts involving matters of fancy, taste, or judgment, when one party agrees to perform to the satisfaction of the other, he renders the other party the sole judge of his satisfaction without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied where he asserts that he is not.\u201d<\/p>\n
\u201cCarlo doesn\u2019t feel comfortable in court,\u201d noted Miranda.<\/p>\n
We proposed an alternate approach: The parties could agree on a simple approval process. For instance, they could decide that if Carlo in his reasonable judgment is unsatisfied with the sculpture\u2019s artistic design before it is fabricated, he can detail his objections and allow the sculptor a reasonable period of time to modify the design. The artist would then advise in writing when the design changes were made, and if Carlo still didn\u2019t like the proposed design he could terminate the agreement.<\/p>\n
\u201cIn that case, would we still have to pay?\u201d asked Miranda.<\/p>\n
\u201cThat depends on what you have negotiated,\u201d we explained. \u201cSome artists insist on a provision stating that they will be entitled to fees for work performed and will be reimbursed costs and expenses incurred to the termination date. Other artists want a set \u2018kill fee\u2019 if a project is canceled through no fault of their own.<\/p>\n
\u201cMy husband is very familiar with kill fees,\u201d mused Miranda. \u201cHow can we ensure that the bust arrives in time for our anniversary?\u201d<\/p>\n
One approach, we explained, was to insert a \u201ctime is of the essence\u201d clause to make on-time delivery imperative. If the delivery were delayed, the artist would incur a stiff penalty. Of course, the artist might want to balance that against a \u201cforce majeure\u201d provision that exempts her from penalty for delays that result from causes beyond her control.<\/p>\n
\u201cBut if the artist doesn\u2019t perform at all, can\u2019t Carlo force her to make the sculpture?\u201d Miranda\u2019s meaning was inescapable\u2014and we were growing increasingly nervous.<\/p>\n
The answer to this question is no. He cannot force the artist to complete the work, at least not under U.S. law.<\/p>\n
That\u2019s not the law everywhere. For instance, in a June 2015 ruling that shocked the art world because of its implications regarding artistic freedom, a Dutch court ruled that the artist Danh Vo had to create a \u201clarge and impressive\u201d installation for the collector Bert Kreuk within a year, for which Kreuk was to pay up to $350,000, to fulfill the artist\u2019s agreement to make a new work for Kreuk\u2019s collection. According to the court order, if Vo did not comply, he faced daily fines of $11,000, capped at about $380,000. Vo appealed and the case was later settled in an appeals court.<\/p>\n
\u201cOnce we own the bust of my husband, could the artist make more copies of it for sale to others?\u201d queried Miranda. \u201cAnd could we make and sell copies of it? Carlo can be a very persuasive salesman.\u201d<\/p>\n
\u201cInitially, only the creator of the piece can claim a copyright in it, which includes the right to make and sell copies,\u201d we explained. \u201cOf course, you may purchase the actual copyright from the artist, which would be separate from purchasing the physical piece itself.\u201d<\/p>\n
However, we pointed out, savvy artists typically insist on retaining their copyright. In such cases, the parties might opt for a compromise. For example, the artist might keep the copyright while agreeing not to re-create the same piece she made for Carlo without his prior consent. And better-known artists sometimes insist on the right to re-create the same piece sold to a particular client if the copy is for a museum or other cultural organization, or if it is for the artist\u2019s own collection.<\/p>\n
The copyright issue got Miranda thinking imaginatively. \u201cWhat if we made a copy and the artist never found out?\u201d<\/p>\n
We warned her that this was a risky proposition. To take just one cautionary example, in 2014, California real estate magnate Igor Olenicoff was ordered by a federal court to pay $450,000 in damages to artist Don Wakefield for making unauthorized copies of Wakefield\u2019s large stone sculptures to adorn Olenicoff\u2019s properties.<\/p>\n
\u201cWhat are the artist\u2019s rights if the sculpture is damaged after we buy it?\u201d asked Miranda cheerfully. \u201cCarlo\u2019s friends sometimes have meetings at the house, and disagreements can be a bit rough.\u201d<\/p>\n
We explained that under a federal law known as the Visual Artists Rights Act of 1990, an artist has, among other rights, the right of integrity, which bars intentional distortion, mutilation, or other modification of a work if that distortion is likely to harm the artist\u2019s reputation, and prohibits the destruction of any work of recognized stature. However, unlike in most of Europe, where moral rights are inalienable and cannot be waived, artists in the United States can waive their moral rights in writing, which is precisely what we suggested in Miranda\u2019s case.<\/p>\n
\u201cWhat exactly is included in the purchase price?\u201d asked Miranda. \u201cFor instance, do we get to own the original sketches of the piece?\u201d<\/p>\n
\u201cThat\u2019s another point of negotiation,\u201d we replied. Some sculptors require that their entire work product\u2014meaning any and all sketches, notes, models, and other preparatory work\u2014remain the property of the artist whether or not the sculpture is fabricated.<\/p>\n
\u201cThe parties would also need to decide whether the purchase price includes the cost of the materials, shipping, fabrication, installation, and insurance of the work,\u201d we continued.<\/p>\n
\u201cAnything else that should go into the agreement?\u201d<\/p>\n
\u201cThe artist\u2019s representations and warranties,\u201d we explained. \u201cShe should state that, upon completion, the bust will be unique and original and not violate any copyright or infringe on the rights of anyone else. She should also confirm that she has not made other commitments or undertaken any engagements that will prevent her from completing the bust in a timely fashion in accordance with the agreement.\u201d<\/p>\n
\u201cWhat if she breaks those promises?\u201d asked Miranda. \u201cDo we get to break her legs?\u201d<\/p>\n
We sensed that Miranda was not kidding, and our anxiety ratcheted up again. Instead of her inflicting bodily harm, we suggested drafting a provision stating that if the artist breaches her representations and warranties, she must indemnify Miranda for all liability and expenses, including reasonable legal fees, resulting from the breach.<\/p>\n
We added that when we represent artists, we usually try to cap this potential liability by saying that the indemnification can\u2019t exceed the fee actually received by the artist.<\/p>\n
Miranda ended our meeting with a friendly warning: \u201cI hope you guys covered all the bases. Carlo already spent 10 years in the pen, and they never did find his last lawyers.\u201d<\/p>\n
Some facts have been altered for reasons of client confidentiality or, in some cases, created out of whole cloth. Nothing in this article is intended to provide specific legal advice.<\/p>\n
Charles and Thomas Danziger are the lead partners in the New York firm Danziger, Danziger & Muro, LLP, specializing in art law. Go to danziger.com for more information.<\/p>\n