Artists and art dealers should look closely at Oregon’s art consignment laws any time the work leaves the studio.
Many artists aspire to show in respected galleries and be represented by reputable dealers. But venues like local cafes can also be early sources of exposure. Whatever stage of the artist’s career, both kinds of public spaces present risks along with their opportunities. On the artist’s side, consignments can lead to being taken advantage of or having work “lost” or damaged. On the venue side, business owners supporting developing artists can become unwittingly exposed to liability risk. Both sides need a basic understanding of the legal rights and responsibilities that come with public exhibition of art.
Under Oregon law, a “consignment” of art “means delivery of a work of fine art to an art dealer for the purpose of sale or exhibition, or both, to the public by the art dealer at other than a public auction.” ORS 359.200 (4). In other words, the public display or sale of art by someone other than the artist is generally subject to statute. The law provides artists with some fairly strong protections, including the ability to recover monetary damages.
The statute defines an “artist” as “the creator of a work of fine art” and includes heirs of a deceased artist. “Fine art” means all forms of original visual or graphic art, including painting, drawing, sculpture, photography, mixed media, prints, calligraphy, and etchings. Craft arts such as works in clay, metal, glass, textiles, and similar materials are also protected. Definitions of “art dealer” and “consignment”, however, extend a bit further than might be expected.
Public exhibition of art is generally a consignment
A “consignment” is the delivery of a work of fine art to an art dealer for exhibition or sale to the public other than at a public auction by the artist or another person (the “consignor”). So the purpose of placing art on public display does not have to be to sell it for the statute’s protections to apply to the art and the artist. If the person to whom art is delivered does “undertake to sell” art, that person is defined as an “art dealer.” This means that the barista who displays paintings mostly to decorate her cafe is an art dealer for purposes of the statute if cards or stickers with sale prices are also displayed. The cafe becomes a gallery for legal purposes.
Art dealer responsibilities for consigned works
When art is delivered under such circumstances, the work becomes “trust property in the hands of the art dealer, who is trustee for the benefit of the consignor until the work of fine art is sold to a bona fide third party.” While the art dealer becomes a trustee only with respect the art, he or she still becomes subject to certain duties. A written contract must be entered into before delivery establishing the art’s retail value and minimum price, and the fee or commission payable to the art dealer. The dealer cannot enforce any contract purporting to require the artist to waive the statutory protections. The “highest degree of care” must be used with the art to avoid loss or damage. And neither the art nor proceeds from its sale are subject to the claims of a creditor of the consignee.
The statute criminalizes certain wrongful conduct on the dealer’s part. It is a Class C felony “willfully and knowingly to secrete, withhold or appropriate a work of fine art or the proceeds from the sale of a work of fine art” for anyone but the consignor’s use. Civil remedies are also provided. Failure to comply with the contract requirements allows removes the artist’s obligation to compensate the dealer and can lead to liability for $100 plus actual damages, including incidental damages sustained as a result of the violation. Loss or damage to the art while in the dealer’s possession can lead to liability for either the value specified in the contract or the work’s fair market value. And, importantly, the statute provides for attorney fees to the prevailing party. This fee-shifting statute can make litigation economically feasible even where an artist is still relatively unknown.
Seek attorney advice on consignments and other art law issues.
The firm welcomes contacts from artists, galleries, and other businesses involved with fine arts exhibition. If you have questions about this post or other art law issues, please email or call.