- What rights do we need to secure as part of the acquisition of the work?
- Do we have what we need for the future conservation and display of the work?
- Can we make copies for exhibition and preservation?
- Does this acquisition warrant the need for formal legal documents?
About the accessioning phase
Contractual documents are required to acquire an artwork. Because of the complexities attached to the bundle of rights being conferred with the transfer of ownership of time-based media works, legal documents take on a greater significance than is the case with more traditional works.
These documents include a purchase agreement, or a deed of gift, and a copyright licence. They specify the terms and conditions of the acquisition and help ensure that all parties understand their respective rights and obligations.
The documents can be used among the following parties (which, in any given transaction, may be a museum, artist or artist’s estate, gallery or collector): purchaser, seller, donor, and copyright holder. Templates for the documents are provided here for reference purposes.
Depending, of course, on the terms of each transaction, they may be used as a starting point in negotiations.
The accessioning phase lies between formally agreeing to acquire a work and actually being in a position, with everything in place, to accession a work into a collection. It is a moment when you make sure that you have everything that was agreed as part of the purchase or gift. In the case of traditional works of art, for example a painting, this is the moment when you check the painting arrived, that it is the painting you thought you were buying and that it is in the expected condition. The end of this phase is marked by legal title passing to the new owner.
There may be occasions when sculptures, paintings or other types of objects are also included as part of the work. However, for the majority of cases, what you are buying when you buy a time-based media work of art is not a unique material object but rather the means and the rights to be able to display the work, loan it, preserve it and sell it. To be able to enact these rights you will need to be in possession of preservation master material and information about how the work is to be installed.
Notify the vendor
Once a decision has been made to acquire the work, it is important to notify the vendor or the donor of this intention as soon as possible. In some cases there may be strong competition for a particular work. It is important that the accessioning stage is completed as quickly and smoothly as possible.
Verify artwork components
During the pre-acquisition phase the buyer will have familiarised themselves with the details of the work and established what is important to its installation and conservation. Preliminary discussions will have taken place to clarify what is being offered as part of the purchase price. During this phase those elements are delivered, and the recipient will have the opportunity to check that what has been agreed has arrived and that it is in good condition. In some cases, the vendor may wait to deliver the certificate until after payment.
Secure and check preservation material
During the pre-acquisition phase, any tasks to be carried out during the accessioning phase to produce preservation material will have been identified. In some cases the vendor may supply archival material as part of the purchase. In other cases the recipient may agree to oversee the production and pay for the material needed. These discussions are best carried out as part of the initial negotiations. Once the payment is made and the acquisition completed, it can be very difficult to go back and ask for access to masters or request the rights to make copies for preservation. To help ensure that you have what you need to enable continued display of the work in the future, it is advisable to complete all archiving before the work is accessioned. It is also useful to specify any subsequent access that might be needed in a legal document such as a Purchase Agreement. If the work is being donated you may need to go back to the artist to ask for access to master material.
It is important to view the material you have received as part of the acquisition in order to check that its condition is as you expected. It is not unheard of to find problems with both media elements and any equipment provided as part of an acquisition. If equipment has been provided as part of a purchase, check what your situation is regarding the warranty.
Contractual documents are exchanged during the accessioning phase. This may be as simple as an invoice; however there are cases where it is of benefit to all parties to have more detailed contracts. These documents include a purchase agreement, or a deed of gift, and a copyright licence. They specify the terms and conditions of the acquisition and help ensure that all parties understand their respective rights and obligations. The documents can be used among the following parties (which, in any given transaction, may be a museum, artist or artist’s estate, gallery or collector): purchaser, seller, donor, and copyright holder. Templates for the documents are provided for reference purposes.
Depending on the terms of each transaction, the templates will be modified and are offered here simply as a starting point in negotiations. A relationship of trust between the artist and their representatives and the new owner is important to successful custodianship. If you think that there is something controversial in the agreement, for example requests to stream the media elements online, discuss this with the artist first. Some artists may trust a museum and not worry about reading contractual documents carefully, it is therefore good practice to make sure they are aware of the content.
You are advised not to sign any agreement unless you first obtain legal advice. Sellers, Donors and Copyright Holders must bear in mind that these documents were drafted from the perspective of the Museum as Purchaser or Donee. The documents are also drafted from a generic perspective of UK and US law and should not be considered a substitute for legal counsel.
The key acquisition documents are:
- Purchase Agreement: a contract between the Seller of the work of art and the Purchaser that controls the terms of sale. OR
- Deed of Gift: a document that memorialises the transfer of ownership of a work of art by way of gift. AND
- Copyright Licence: because ownership of an artwork does not necessarily include ownership of the copyright to that artwork this document is an authorisation from the Copyright Holder to the Owner of a work of art permitting the Owner to, for example, reproduce the work in publications and/or for preservation purposes.
For all documents
Before signing the contract, you will have information in hand about the work [refer to Pre-acquisition Guidelines checklist]. You will already have considered the installation details, long-term preservation and exhibition requirements, future technological developments, as well as condition assessment. At this moment you might also wish to secure a Copyright Licence between you, the new owner of the work and the Copyright Holder. Although the artist normally retains the copyright in the work, you may want to secure rights to produce images and copies of the work for a range of purposes from publicity to preservation.
Please note the following with regard to the templates below:
* [Square brackets] have been used:
- where the information contained within them is optional or subject to change according to the particular circumstances.
- to comment on particular issues that should be addressed when tailoring this agreement.
- all square brackets should eventually be removed (using the search facility) and the information within them modified or deleted before the Agreement is signed.
* Red bold font is used where the information contained within is optional as it specifically applies to time-based media.
Two copies of each of the documents used (for example, the Purchase Agreement or the Deed of Gift and the Copyright Agreement) are sent to the Seller for signature. Each party should retain one fully signed original.
This template can be adapted for use in situations where there is more than one Purchaser (i.e. a joint acquisition sometimes referred to as a co-ownership agreement and would need to be reviewed with the relevant co-ownership agreement and relevant co-owner(s).)
In conjunction with the Purchase Agreement, secure a Copyright Licence with the copyright holder.
Deed of Gift
This template assumes a full gift between two parties. It can be adapted to situations where there is more than one Donee or if the gift is fractional.
In conjunction with the Deed of Gift, secure a Copyright Licence with the copyright holder.
Please note the following:
- Affirmation of Title is desirable but not crucial if you have done your pre-acquisition research. You need to assess the relationship with your donor to determine whether to pursue.
- Certificate of Authenticity: if donor is not in possession of, or cannot transfer it, you may need to obtain this document by other means, including contacting the artist, gallery or estate. In some cases there may be a charge for replacing a missing certificate.
- Red bold font is used where artist or artist estate are the donor. If the artist is not the donor, bear in mind that you may need to obtain documents by other means as well as deleting the sections of non-relevance.
This template is an agreement between the Copyright Holder (usually the artist) and the collector (referred to as the ‘Museum’ in the document). It can be used as a general licence agreement as well as a document specific to time-based media.