The document below is a close adaptation, of an agreement written by Lela Hersh of the Museum of Contemporary Art in Chicago. Lela has generously shared her document over the years, revising it periodically as needed. It has been distributed in the Source Book of materials from an annual AAM meeting, as well as in the materials that accompanied her presentation at a recent ALI-ABA meeting. The version below is altered only very slightly from Lela's original to suit the needs of the Whitney Museum of American Art. It is recommended that anyone who chooses to adapt it for their institution's use, consult with their own legal counsel first.
- Suzanne Quigley
Exhibition Title: title
Installation/Artwork Title: title of work (the "Installation/Artwork").
Exhibition Dates: dates
This Agreement is made the N day of month , year, between the NameofMuseum ("NoM"), a State not-for-profit corporation, address, City State zip, and artist name ("Artist"), address (address) for the purpose of defining the Artist's preparation of the Installation/Artwork, an installation at NoM.
For valuable consideration NoM and the Artist agree as follows:
1. Creation, Display of Installation/Artwork. The Artist agrees to conceive, research, produce, and participate in the fabrication and installation of the Installation/Artwork, which shall be completed and installed no later than 2 days prior to the exhibition's public opening, scheduled for month, day, year. The Installation/Artwork shall remain on public view at venue name and address from the date of installation through date, subject to earlier removal at the sole discretion and expense of NoM. Artist agrees to advise NoM regarding the dismantling of the Installation/Artwork if NoM exercises its option for early removal.
NoM shall have the sole discretion to extend the Exhibition period at each location where it is being exhibited, and the Artist agrees not to withdraw the Installation/Artwork during the term of this Agreement and any extension.
2. Description. The materials for this Installation/Artwork, as listed in Appendix A, are to be provided by the Artist.
3. Compensation. (a) As full compensation to the Artist for performance of services and provision of his/her supplies pursuant to this Agreement, NoM shall pay to the Artist a maximum of totalfee for documented expenses (the "Fee"), as agreed to and indicated in the attached budget (Appendix B). NoM's total financial responsibility for realization of this project is limited to the maximum budget of $ total fee, including NoM's fabrication costs.
(b) Payment shall be made as follows: an advance payment of $-------, fifty percent (50 %) of the Fee within 10 business days following execution of this agreement; the remaining fifty percent (%) upon completion, approval and installation and final approval of the Installation/Artwork. NoM shall not be responsible to pay any amount in excess of the Fee unless prior written approval has been given. The Fee is not an outright grant and may be used only to cover expenses specifically incurred for the Installation at NoM.
(c) The Fee includes all costs incidental to the realization of the Installation/Artwork, including, but not limited to, assistant's fees, materials for the construction of the Installation/Artwork, communications, films, tapes, and other related expenses. The Fee does not include the following costs, for which the Artist is solely responsible: phone, fax, local travel, general supplies, etc.
(d) The Artist shall provide NoM with original receipts for all reimbursable expenses of the Fee.
(e) NoM agrees to bring the Artist to ____________ (name of city) from ___________ (name of city) to install the Installation/Artwork and pay the Artist a maximum of $ 65 per diem for _____ days, totaling $______, and ground transportation of $100.00. Hotel expenses for _____ night(s) and airfare from ___________ (name of city) will be arranged and paid for directly by NoM.
(f) The Artist shall sign an IRS Form W9 for NoM's files before any payment is sent. (If not a US citizen, Artist shall either provide NoM with IRS Form 8233 Exemption from withholding on Compensation for Independent personal Services of a Non-Resident Alien Individual or NoM will deduct thirty percent (30%) of maximum fee from Artist. No deductions shall be made for material fees, per diem, or local transportation, if original receipts are supplied to NoM)
4. NoM Responsibilities. NoM shall be responsible for services and expenses required for the preparation of the gallery space (carpentry, painting, electrical), installation labor and materials not itemized in Appendix A or B and insurance; and if applicable, incoming and outgoing shipment, exhibition graphics, a brochure/catalogue, invitations, and promotion.
5. Inspection and Approval. The NoM has the option to conduct reviews of the Artist's progress during the development of the Installation/Artwork. Unless there has been a material change in the Installation/Artwork as it has been agreed upon herein, final acceptance by NoM of the Installation/Artwork will be made upon its completion.
6. Shipping and Installation. NoM shall arrange with the Artist a schedule and instructions for shipping the Installation/Artwork. Artist agrees to meet all schedules required for the safety of the Installation/Artwork materials and the timely shipment to NoM. Artist certifies that the object (s) lent are in such condition as to withstand ordinary strains of packing, transportation and handling. At the end of the Exhibition, Artist may keep all materials and objects which were purchased for and incorporated into the Installation/Artwork, minus any objects or cases provided or owned by NoM or any electrical or computer equipment purchased which it wishes to retain. However, the Artist is responsible for any and all fees and costs associated with returning materials.
If any part of the Installation/Artwork is borrowed from Artist, then this (these) part(s) will be returned only to Artist, and not a third party, at the address stated on the face of this Agreement or to a new location within the same or a shorter geographic range. Any such parts that the Artist does not wish returned to him/her shall be disposed of at the discretion of NoM.
If the legal ownership of the Installation/Artwork should change during the Exhibition period, whether by reason of death, sale, insolvency, gift or otherwise, the Artist or Artist's agent will, prior to its return, be required to establish its legal right to receive or redirect the delivery of the Installation/Artwork by proof satisfactory to NoM. The new owner shall be responsible to pay any difference in the shipment charges due to the change of address. If the Artist wishes to send materials to a third party, Artist must absorb all costs associated with shipping and insurance.
Upon return of the Installation/Artwork, or portions thereof,
Artist will receive a receipt of delivery. Subject to the limitations
contained in this Agreement, NoM shall not be responsible for,
nor shall honor any damage or loss claims unless the Artist and/or
the Artist's designee examines the Installation/Artwork, returns
a signed copy of the delivery receipt and notifies NoM of the
damage or loss within thirty (30) days of the delivery. If damage
occurs, all packaging materials shall be saved and photographic
documentation of the damage shall be provided to NoM. No damage
claims will be honored unless Artist or Artist's designee has
notified NoM of the alleged damage with in ninety (90) days of
the end of the loan period.
7. Insurance. NoM will insure the Installation/Artwork
at $_________, which is its assumed replacement value. Any money
resulting from an insurance claim shall be paid first to NoM to
cover the Fee and NoM's direct materials and production costs
(the "Realization Cost"), in the amount of $ hence
thereafter to the Artist. NoM will insure the Artwork under its
standard Fine Arts Policy, which contains the usual and customary
exclusions. The Installation/Artwork shall be insured for physical
loss or damage while in transit and on location during the Exhibition.
If the Installation/Artwork suffers damage to a part or parts,
which have been industrially fabricated and can be replaced to
Artist's specifications, the amount of such insurance shall be
limited to the cost of such replacement.
The amount payable to the Artist, if any, under insurance provided in accordance with this Agreement is agreed to be the sole and exclusive remedy available to Artist in the event of loss or damage to the Installation/Artwork. NoM shall have no direct and/or supplemental liability to the Artist in respect of any loss or damage to the Installation/Artwork.
8. Terms and Conditions of Loan. In consideration of the financial investment incurred by NoM, Artist agrees to lend Installation/Artwork to NoM for the Exhibition (and tour) for a loan period between Day, Date of Month, Year and Day, Date of Month, Year. Artist agrees not to withdraw Installation/Artwork during the period of this Agreement and confirms NoM's right to return Installation/Artwork (excluding NoM-purchased materials, electrical or computer equipment) after the close of the Exhibition and tour.
9. Handling and Care. Except as provided below, NoM will not restore, conserve, or otherwise alter the Installation/Artwork without the Artist's consent unless the immediate safety of the Installation/Artwork, NoM, or the public is involved, or unless NoM and the Artist have agreed to a maintenance schedule prior to the Exhibition's opening. Installations/Artworks in danger of infestation may be fumigated at the discretion of NoM. Any emergency alterations will be recorded and forwarded to the Artist. NoM may, at any time and at its sole discretion, remove all or part of the Installation/Artwork work from the Exhibition or require alterations deemed by the curators, registrars or conservators to be hazardous to other artworks, the building or visitors.
10. Documentation. The Artist agrees to permit NoM to document the Installation/Artwork and its installation by the Artist and/or NoM by all modern scientific methods for archival, promotional, educational and such other purposes as the Foundation shall determine. Such photographs, and copyright therein, shall be the property of the Foundation. The Artist shall be provided at least one slide or print of an installation view that includes the Installation/Artwork taken by the NoM photographer.
11. Copyright. The Artist retains ownership of the copyright
in the Installation/Artwork. The Artist hereby grants NoM a non-exclusive
license to reproduce and distribute photographs of the Installation/Artwork
to the public, to transmit or otherwise communicate a display
of the Installation to the public (including but not limited to
slides, film, video, television, Internet and other electronic
or broadcast media), and to authorize others to do the same.
Any reproduction or subsequent exhibition of the installation/Artwork
produced as a result of this Agreement shall be credited as follows:
12. Ownership of Plans, Drawings, Models. Any plans, diagrams, drawings and models received from the Artist for the purpose of planning and/or exhibition shall remain the property of the Artist.
13. VARA. Pursuant to the Visual Artists Rights Act of 1990, the Artist hereby specifically waives any and all rights that may be granted under such an act and understands that the Installation/Artwork to be produced under this Agreement may, at NoM's discretion, be destroyed after the Exhibition unless Artist has received or can remove the Installation/Artwork from the premises by ______________(month, date, year).
14. Purchase. Should NoM wish to purchase the Installation/Artwork, it shall have a right of first refusal at a mutually agreed upon purchase price, which after deduction of the Realization Cost now estimated to be $_________.
If NoM does not exercise its right of first refusal and the Installation/Artwork is sold to another person, gallery, or institution, NoM will be due full compensation for an amount up to the Realization Cost plus the fee originally paid to the Artist. This provision survives this Agreement, has no time limitation and is applicable for the life of the Installation/Artwork as a whole or in parts. If a part(s) of the Installation/Artwork is (are) sold, NoM is due compensation as above on a pro rata basis. If Artist chooses to reimburse NoM for the Realization Cost, then the Artist will be the sole proprietor of the Installation/Artwork.
The Artist shall provide the Artist's agent and/or gallery written notice of the above terms.
15. Inspection and Security. NoM shall provide periodic on-site inspection of the Installation and will maintain security coverage during public hours. The Museum's agents, employees, volunteers, officers, or trustees shall not be personally responsible for or liable for any damage to or destruction of any materials or equipment supplied by the Artist.
16. Relationship of Artist and NoM, Indemnification. The Artist shall be an independent contractor during the period of performance under this Agreement and not an employee of NoM. The Artist shall be required to carry commercial liability insurance in the amount of $1 million and provide the NoM with a certificate of insurance indicating such coverage. The Artist agrees to defend, indemnify, and hold NoM and its agents, employees, volunteers, officers and trustees harmless from any and all claims and liabilities arising directly or indirectly out of the Artist's or his/her assistant(s)' or agent(s)' activities hereunder.
17. Non-Transferability of Agreement. This Agreement is intended to secure the personal services of the Artist and shall not be transferred or assigned in any manner whatsoever without the prior written consent of the Museum.
18. Inability to Perform Agreement. If the Artist is unable, for any reason, to conceive, research, produce, or set up the Installation/Artwork as agreed upon (other than the inability of NoM to perform hereunder), the Artist shall return all money paid to him/her. If any equipment and/or materials have already been purchased, the Artist shall keep those items and return the full purchase price to NoM.
19. Entire Agreement. This Agreement is the entire understanding between the Artist and NoM and supersedes and replaces any previous documents, correspondence, conversations and other written or oral understandings related to this Agreement which are not consistent with or are not contained herein.
20. Governing Law. In the unlikely event that a dispute arises out of this Agreement such Agreement shall be governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above.
X_______________________________ X______________________________________
Artist: ___________________________ Head Registrar, NoM
Social Security No.: ________________ X______________________________________
Curator, NoM
Appendix A: Detailed description of installation/artwork
Appendix B: Detailed Budget
11/99