Art Gallery Work
Zenen Delgado
This is concerning an issue involving the work of an individual as an
art consultant (sales) for an art gallery.
The situation involves an individual who worked for an art gallery
as a salesperson. However, during the course of his employment he
solicited and obtained the artworks of a specific artist to be sold at
this gallery. Through his efforts (exclusively) the gallery was able to
represent this artist and to display and sell his art. Correspondence
was generated and agreements signed which bear his signature and, in a
couple of instances, the signature of the gallery owner. This
salesperson actually negotiated with and ultimately pursuaded the artist
to display at this gallery. The arrangement was also based on the
relationship that was created between the salesperson and the artist.
The issue seems to be: After leaving the gallery, does this salesperson
have any right or claim to payments/royalties/commissions/etc. on the
continued sale of this particular artists' work by the gallery?
Any comments or direction to a source of information that would shed
some light on this subject will be very much appreciated.
Zenen Delgado
<del...@rof.net>
GALL, Barbara (389)(8346)
This is a state law issue, as well as a contractual issue. In Colorado,
for example, the salesperson would be entitled to all commissions earned
on works sold while he was employed, whether or not the money was
received until after he left. He would be paid when the gallery was
paid, whenever that was. Unless he had a specific agreement with the
gallery owner regarding all sales of this artist's work forever,
however, he would not be entitled to commissions on works sold after
his departure.
My mommy and the Colorado Supreme Court say to tell you this is not
legal advice, but only my opinion.
Barbara Gall
<bg...@sah.com>
Bernard Katz
On Mon, 1 Mar 1999, Zenen Delgado <del...@rof.net> wrote:
>
> This is concerning an issue involving the work of an individual as an
> art consultant (sales) for an art gallery.
>
> The situation involves an individual who worked for an art gallery
> as a salesperson. However, during the course of his employment he
> solicited and obtained the artworks of a specific artist to be sold at
> this gallery. Through his efforts (exclusively) the gallery was able to
> represent this artist and to display and sell his art. Correspondence
> was generated and agreements signed which bear his signature and, in a
> couple of instances, the signature of the gallery owner. This
> salesperson actually negotiated with and ultimately pursuaded the artist
> to display at this gallery. The arrangement was also based on the
> relationship that was created between the salesperson and the artist.
>
> The issue seems to be: After leaving the gallery, does this salesperson
> have any right or claim to payments/royalties/commissions/etc. on the
> continued sale of this particular artists' work by the gallery?
>
> Any comments or direction to a source of information that would shed
> some light on this subject will be very much appreciated.
Pray tell - what does this query have to do with copyright, or for that
matter any aspect of intellectual property law...??
Cheers,
Bernard Katz, Head, Special Collections and Library Development
McLaughlin Library, University of Guelph, Guelph ON Canada N1G 2W1
and Chair, Ontario Library Association Copyright Action Committee
bk...@uoguelph.ca // (519) 824-4120 X2089 // FAX: (519) 824-6931
dol...@jazz.fantasyjazz.com
On Mon, 01 Mar 1999, Zenen Delgado <del...@rof.net> wrote:
>
> This is concerning an issue involving the work of an individual as an
> art consultant (sales) for an art gallery.
>
> The situation involves an individual who worked for an art gallery
> as a salesperson. However, during the course of his employment he
> solicited and obtained the artworks of a specific artist to be sold at
> this gallery. Through his efforts (exclusively) the gallery was able to
> represent this artist and to display and sell his art. Correspondence
> was generated and agreements signed which bear his signature and, in a
> couple of instances, the signature of the gallery owner. This
> salesperson actually negotiated with and ultimately pursuaded the artist
> to display at this gallery. The arrangement was also based on the
> relationship that was created between the salesperson and the artist.
>
> The issue seems to be: After leaving the gallery, does this salesperson
> have any right or claim to payments/royalties/commissions/etc. on the
> continued sale of this particular artists' work by the gallery?
>
> Any comments or direction to a source of information that would shed
> some light on this subject will be very much appreciated.
although my middle name is 'no, i'm not an atty.', my guess is that
the employee would not be entitled to royalties generated from this
scenario. the salesperson (who sounds like an effective employee and
member of the art gallery team) was working within their 'scope of
employment' when the deals were executed. imagine if the tables were
turned and the same salesperson were sued for an action taken on the
job. i'll bet that salesperson's defense would be that they could not
be held liable, claiming that they were 'only an employee' performing
duties within that same 'scope of employment'.
(the above is not legal advice and does not necessarily represent the
views or opinions of my employer.)
Derric Oliver
<dol...@jazz.fantasyjazz.com>
dol...@jazz.fantasyjazz.com
On Tue, 2 Mar 1999, Bernard Katz <bk...@uoguelph.ca>
>
> Pray tell - what does this query have to do with copyright, or for that
> matter any aspect of intellectual property law...??
because, mr. katz, copyright and intellectual property law are germane
to the entertainment business, which is directly related to personal
service agreements and agency law, and the right to earn
residuals/royalties, which, in my opinion, directly relates to the
question at hand.
(the above is not necessarily the views or opinions of my employer)
------------------------
Derric Oliver
<dol...@jazz.fantasyjazz.com>
Zenen Delgado
On Tue, 02 Mar 1999, Derric Oliver <dol...@jazz.fantasyjazz.com> wrote:
>
> although my middle name is 'no, i'm not an atty.', my guess is that
> the employee would not be entitled to royalties generated from this
> scenario. the salesperson (who sounds like an effective employee and
> member of the art gallery team) was working within their 'scope of
> employment' when the deals were executed. imagine if the tables were
> turned and the same salesperson were sued for an action taken on the
> job. i'll bet that salesperson's defense would be that they could not
> be held liable, claiming that they were 'only an employee' performing
> duties within that same 'scope of employment'.
>
> views or opinions of my employer.)
Derric,
Thanks for your observations which is all that was asked for and not
"legal advise" which we all know is not "advisable" in this medium. In
view of your middle name, there should not be any problem, anyway.
However, the point is that when the salesperson was performing this
work, he was not doing so within the normal "scope of employment" but
was asked to do something over and above what a regular employee would
be responsible for doing. I am trying to determine if that makes a
difference.
Zenen Delgado
<del...@rof.net>
Zenen Delgado
On Wed, 03 Mar 99, Derric Oliver <dol...@jazz.fantasyjazz.com> wrote:
>
> because, mr. katz, copyright and intellectual property law are germane
> to the entertainment business, which is directly related to personal
> service agreements and agency law, and the right to earn
> residuals/royalties, which, in my opinion, directly relates to the
> question at hand.
>
Derric,
You have precisely stated the crux of the matter which is a service
agreement involving obtaining the position of an agent for an artist.
This is outside of the scope of employment of a salesperson in every
sense since it is the gallery who usually recruits the artists for
representation. In this case, the gallery would have been unable to get
this particular artist's works to display and sell without this third
party's services.
Thanks for your perspective view.
Zenen
Zenen Delgado
<del...@rof.net>
Kerry L. Konrad
Responding to Derric Oliver, let me try to put Mr. Katz's point in a
different way, which may give you less offense: unfortunately for the
person involved, IMHO, there is no conceivable intellectual property
claim that could arise from the situation you describe. It's a question
of state agency law, perhaps contract law, perhaps employment law, but
not IP law. Your response suggests you realize that, but it wasn't
apparent from your initial posting to this list, which concerns
copyright issues. As for it being an entertainment law issue as you
suggest, I don't even see that -- it's just a question of sales
commissions or a finder's fee or something I can't really figure out
(I confess I don't see a basis for a claim off the bat), and the subject
of the sales might as well be widgets or cars as works of art. By your
logic everything relates to IP law because movie studios acquire IP
rights and also own real estate and employ people and those people
drive cars on the job and on and on. Putting the problem in the right
analytical slot might help to solve it, and please don't be surprised
if a bunch of IP professors and practitioners and laborers in the
vineyards of the research community have nothing particularly salient
to contribute on this off-list subject.
Kerry L. Konrad
<k_ko...@stblaw.com>
CNI-COPYRIGHT Moderator
On Wed, 03 Mar 99, Derric Oliver <dol...@jazz.fantasyjazz.com> wrote:
>
> because, mr. katz, copyright and intellectual property law are germane
> to the entertainment business, which is directly related to personal
> service agreements and agency law, and the right to earn
> residuals/royalties, which, in my opinion, directly relates to the
> question at hand.
Um... you're sounding a little incredulous here.
In Mr. Katz's defense, Mr. Delgado could have done a better job of
outlining this line of reasoning in his original message. I figured
this was where he was going, so I approved the posting. But...
As moderator of the list, I almost decided to bounce the message
back to Mr. Delgado for clarification. Although I tend to error on
the side of the expression of free speech here, the link from serving
as an agent representing an artist in a business transaction with a
museum to copyright or intellectual property rights is thin at best.
(And more specifically, Mr. Delgado's question pertains to whether
any royalties or fees are due the agent, not whether the fees are due
the artist -- presumably, the holder of the intellectual property
rights.)
While entertainment and agency law may be tangential to copyright in
certain cases, I think one owes it to the readers of a list dedicated
to copyright and intellectual property to do a pretty good job of
spelling out *why* you think your question is pertinent to the
readership and mission of this list.
"Because I didn't know where else to post it," isn't good enough
in my opinion.
--
Craig A. Summerhill
Coalition Manager o'Lists -- The Postmaster -- lis...@cni.org
Coalition for Networked Information; 21 Dupont Circle, N.W.,
Suite 800; Washington, D.C. 20036 lis...@cni.org (Postmaster)
S. Martin Keleti
On 3/4/99, Kerry L. Konrad <k_ko...@stblaw.com> wrote:
>
> Responding to Derric Oliver, let me try to put Mr. Katz's point in a
> different way, which may give you less offense: unfortunately for the
> person involved, IMHO, there is no conceivable intellectual property
> claim that could arise from the situation you describe.
> Putting the problem in the right analytical slot might help to solve
> it, and please don't be surprised if a bunch of IP professors and
> practitioners and laborers in the vineyards of the research community
> have nothing particularly salient to contribute on this off-list
> subject.
I tend to agree with Katz and with Konrad's gloss on the subject. One
IP area, however, which is not copyright, but which conceivably might
be related, would be the resale royalty right under California Civil
Code 986. Delgado's original hypothetical is silent as to the situs of
the problem, but does mention: "the continued sale of this particular
artists' work by the gallery." Perhaps under the right set of factual
circumstances (such as original purchase by the gallery for resale, or
subsequent sales at the same gallery of the same copies), this issue
might arise. Nevertheless, the original query does appear to be
off-topic; it might be interesting to some subscribers, but it's not
hard to see why others find it off-topic.
M.
S. Martin Keleti
<kel...@manifesto.com>
Zenen Delgado
On Fri, 05 Mar 1999, S. Martin Keleti <kel...@manifesto.com> wrote:
>
> I tend to agree with Katz and with Konrad's gloss on the subject. One
> IP area, however, which is not copyright, but which conceivably might
> be related, would be the resale royalty right under California Civil
> Code 986. Delgado's original hypothetical is silent as to the situs of
> the problem, but does mention: "the continued sale of this particular
> artists' work by the gallery." Perhaps under the right set of factual
> circumstances (such as original purchase by the gallery for resale, or
> subsequent sales at the same gallery of the same copies), this issue
> might arise. Nevertheless, the original query does appear to be
> off-topic; it might be interesting to some subscribers, but it's not
> hard to see why others find it off-topic.
Martin,
The subject is, if not totally off-list, a gray area affected by more
than a couple of legal concepts. However, both your comments and those
of Derric Oliver's, do have a bearing on the matter and are helpful at
least in discerning that there are a couple of angles from which to
approach it.
This situation appears to be similar to many which have been presented
in this forum concerning the work of students, teachers, and various
others while in the employment or association with certain institutions
and entities. There was extensive discussion about what was or what was
not IP as well as concerning rights to copyright material and receive
compensation for the use of their work product while in said
"employment".
By the way, the place of occurrence is the State of Colorado.
Zenen
Zenen Delgado
<del...@rof.net>