The FARE Contract

The FARE Contract: Negotiating Fairness for Artists

Written by Genie Davis
Artist Virginia Broersma and attorney Susan Schwartz began a partnership last spring to create a contract for artists. A fair contract was their goal, one that would incorporate co-ownership and resale royalties. Speaking with artists, the pair managed to do just that. The FARE (Fair Artists’ Reserved Equity) Contract was created.

Broersma and Schwartz reveal that “In speaking with artists, we learned that many are frustrated with their inability to control their work and benefit from it financially in the ways that workers in other creative industries can, such as writers, actors and musicians. The idea of resale royalties and co-ownership is incredibly appealing to artists, but many [may] think that it is too much to ask and in fact, in some cases have been told this by their galleries and collectors.”

Schwartz adds “However, resale royalties are an accepted practice in over 70 countries around the world, and many galleries and dealers give their artists resale royalties because they recognize it as being a fair practice that contributes to an artist’s sustainability. The creation of the contract was just the beginning of the overall project, which is to encourage artists to protect their interests and their rights by asking for written agreements. The biggest challenge will be to increase artists’ confidence in asking for contracts when many artists today are afraid of losing out on opportunities. This in turn puts artists in a disempowered and precarious position and perpetuates bad business practices.”

Broersma says that the inspiration to create a contract hub for visual artists is just one of the tools artists need to support their practice. “For many, using contracts and understanding legal ramifications of certain terms feels overwhelming, especially since most art degree programs discuss nothing of the business of being an artist. We wanted to create a free sales contract for artists to use that made the process easy. By making it free, easy to use, and modifiable, we hope to remove some of the common barriers that prevent artists from using sales contracts.”

The contract component is just one of many services that Broersma and Schwartz are making available for artists. Part of this project is an educational component; both have taught and continue to give presentations about the project, using contracts and helping artists advocate for their rights. Schwartz has a law practice that helps artists with contracts, and Broersma offers support for artists through The Artist’s Office. The contract project grew from their own experience with these individual practices; however, the Contract project is its own entity.

Their ultimate goal, Schwartz says is “working on consignment and sales agreements; licensing agreements; cease and desist letters when copyright infringements have occurred; and commission agreements. We will add more contracts as needs are identified.”

They believe that having a good contract can help empower all artists. In the United States the only way artists can obtain resale royalties is through their contracts. Legislation in California which provided for resale royalties was struck down by the courts. Broersma and Schwartz both note that congress has three times considered amending the Copyright Act to provide for resale Royalties, and each time declined to do so. The result: “If an artist in the U.S. wants resale royalties, they need a contract. A contract also allows an artist to maintain control over their work after it has been sold. Artists can prevent ‘flipping’ of their works through contractual terms limiting resales for a period of time; can demand a right of first refusal through their contracts; can demand the right to veto exhibitions they don’t approve of and can require notice of the identity of the purchasers of their works.”

Asking for a contract also establishes that the artist is an equal party in transactions and agreements, the pair point out. “The very simple act of asking will begin to normalize this practice and empower the individual artist as well as artists in general.”

Broersma and Schwartz plan to continue adding to the side to create a “full suite” of contracts, making a hub of the most commonly used contracts for artists.

According to Broersma, “We are building a coalition of artists to push the project forward,
and will begin accumulating a list of supporters for the project to bring more visibility to those
who support using contracts, support artists rights and support resale royalties.”

In addition, they have plenty of ideas including printed editions of the contract incorporating images of artists’ work; creating additional programming and panel discussions around these issues; and reaching out to fundraiser organizers that use artwork sales to raise money. They also plan to reach out to blockchain registries and sales platforms that might want to adopt the use of the contract for their website.

Broersma relates “There is a lot to do! If only we could hire ourselves, plus a full staff to accomplish it. We hope that by growing the Coalition we can get more artists involved through this grassroots movement and make this project widely accessible.”

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