The first transfer of ownership of a work of art is considered to be the so-called first-tier market.
This first transfer is frequently formalised in a written and signed contract of sale of a work of art between the artist and the buyer (often brokered by a gallery owner or some other agent of the artist). However, the formal requirements of a written contract are not always respected. This is especially the case with transfers taking place at different levels of the market.
Although business relationships in the art world are often characterised by a considerable degree of trust, the parties to a contract for the sale of a work of art should always raise a few questions as a mutual guarantee. A real pre-purchase due diligence should be carried out.
We resolve this issue in a checklist of 5 simple points.
In Fine Art, the Gordian knot about, for instance, the authenticity of a 17th century altarpiece, may be particularly complex to cut and may require an expert opinion from a competent critic. Documentation on the provenance of the artwork might be useful.
In addition, the need to document exhibitions where the work of art was exhibited or its possible publication in catalogues (element of influence on its value) is undoubtedly necessary.
A contract for the sale of an artwork by a living artist, on the other hand, will require an ad hoc certification by the artist. Such certification would often include a brief overview of the artwork together with a reference to the exhibitions and publications in which it was involved.
Who does the work come from? Who is the seller?
This question is not relevant in the case of a living artist, since the work comes directly from its creator. On the other hand, when our seller is a person other than the artist, we will proceed to investigate whether the artwork comes from…
In the latter case, the sales invoice from the originating gallery might be sufficient. Needless to say, the ownership often goes hand in hand with the authenticity of the work.
Is such artwork of interest for the Italian State?
If so, the work must have a free movement certificate issued by the Superintendency. This means that the presence or absence of the above-mentioned certificate has a significant impact on the possibility of exploiting the artwork and using it freely.
This third aspect mainly concerns purchasers of works bearing an important and already established signature; with minor artists the problem does not occur.
The fourth factor that should be considered is the state of conservation.
It might be worthwhile to describe the condition of the work in an annex to the contract of sale. This is primarily to prevent subsequent disputes related to the deterioration of the work itself.
The artist himself may sometimes raise concerns about the conservation of the work and its possible restoration. Consider, for example, those works of art whose expression is particularly special; performances or ephemeral art or even the use of specific materials (in this regard, see the article “Conservation and restoration of works of Contemporary Art”).
The artist may actually instruct the buyer on maintenance and may reserve the right to intervene if necessary. Alternatively, the artist may recommend a preferred restorer. In other words, at the time of the contract, the buyer and the seller must know what might happen to the work of art.
Should the buyer plan to commercially exploit the artwork, other than for private fruition and enjoyment, it is advisable to thoroughly analyse the actual rights the seller is able to assign. In the case of a purchase from a living artist, a contract must always be drawn up for the economic exploitation of the artwork he/she intends to sell or licence. If no such agreement has been made, it should be remembered that all rights remain with the artist except for the ownership of the physical work. It is by no means a foregone conclusion that the buyer may produce a catalogue or an exhibition without the artist’s consent. The same issue arises with artists who have been dead for less than 70 years. The buyer may then consult with the heirs to resolve certain doubts and, in any case, discuss the issue with the seller to clarify which rights he is actually entitled to. Not least because some uses of the work could get into the boundless perils of moral copyright, which has no expiry date…
It goes without saying that an experienced lawyer is recommended in these and other cases. For further information, please contact us by phone, request a quote, or simply visit the Art Law page of our website.