Monday 21 March 2022

The Road to Hell is Paved With Good Intentions

Recently I came across the Belgian organisation Juist is Juist, which translates to Right is Right or Just is Just. They were founded in June of 2020 and their aim, in their own words, is to provide 'a knowledge platform with toolbox that gives you the tools needed to enter into a partnership on an equal basis. Juist is Juist takes into account that fair practices can differ depending on the context – without calling into question the basic legal and solidarity principles.'
They do so by providing guidelines and a 'toolbox' consisting of such things as model contracts and calculation modules.
In principle I applaud these initiatives, as there is much unclarity and misinformation about art and its relationship to economic and legal matters.
Unfortunately, some of the model agreements Juist is Juist distributes at the present time are a perfect example of these kind of misinformed attempts to better the world.

One of their model agreements is a sales agreement and it can be found here.
Article 1 of this agreement states the following:
'The Artist transfers to the Buyer ownership of the artwork described below'
It is thus clear that this agreement is for a transfer of ownership of the work. There is zero ambiguity about that fact. The concept of ownership is central to civil law and is considered the most far reaching right one can have on a good, most principally providing the owner of a good the right to exclude others from accessing that good.
Most of the contract stipulates other aspects that make such a transfer of ownership possible, such as a general description of the work(s), sale price, date and method of delivery and so on.
However, at some point in this contract they attempt to restrict the rights of the new owner. 
Article 5.1 and 5.2 read:

5.1. The Buyer will take good care of the artwork. He will handle and maintain the artwork in accordance with the intention of the Artist and with due regard for the creator’s intellectual rights. 
5.2. The Buyer undertakes to inform the Artist immediately of any theft of or damage to the artwork. In such a case, the Buyer will take the necessary (remedial) measures in consultation with the Artist. 
Presumably their intentions lay in making sure that a new owner of a work would take good care of that work, which regrettably sometimes doesn't happen.
However, having a say in what another person can or cannot do with a certain good is precisely one of the things ownership entails. With these articles they thus in effect attempt to create a contract wherein the artist retains ownership of the work, while the buyer obtains a simple right of use. These stipulations are in clear contradiction with the previous assertion that the contract entails a transfer of ownership.
Any contradiction in an agreement is sure to bring a whole range of difficulties and uncertainties if it is ever tried in a court of law, so this agreement will likely do more harm than good for an artist that wishes to retain some degree of control over their work after it leaves their studio.
There are some laws in some countries that assert an artist's moral rights, as opposed to the intellectual rights cited in this contract, but the effective application of this kind of legislation has had varying outcomes in court so they can't be said to provide any securities in advance.
If an artist wishes to retain a greater deal of control over their work they can always choose to not transfer the ownership of a work, but instead lease the work for an (indeterminate) amount of time. This will however likely not be something that many collectors will be interested in, as this makes it impossible for the work to serve as an investment for the holder of the work.
Alternatively, an artist can include a detailed technical specification in the sales agreement and assert that the work can only be displayed under the artists' name if those technical specifications are strictly adhered to. That any repair or significant change to the work without prior notification will give the artist or their (named) representatives the right to publicly renounce their authorship of the work. If the buyer disregards the artists' wishes then such a renouncement will greatly limit the economic value of the work in the future. Such a clause will thus serve the same effect without attempting to infringe on the right of ownership of the buyer.

There is one other stipulation in the model agreement provided by Juist is Juist that deviates from the general stipulations under Belgian law and this stipulation contains very unclear wording. At the end of the contract there is the following article:
'In the event of resale of the artwork, the Buyer grants a preemptive right to the Artist. The Buyer can thus only sell the artwork to a third party under the condition precedent of the Artist not exercising this preemptive right. This pre-emptive right will be exercised as follows: if the Buyer has concluded a sale under the aforementioned condition precedent or has received a binding offer from a prospective buyer, he will inform the Artist of this by registered letter. The Artist then has a period of 15 calendar days to exercise his preemptive right and to notify the Buyer of this by registered letter.'
The translation from the Dutch is terrible, but the specific pre-emptive right they refer to here is a right of first refusal given to the artist when the new owner wishes to resell the work. 
From what I can gather this is an attempt to limit the possibility of 'flipping' the work. However, from what I understand of Belgian law, this right of first refusal is only offered if the owner has already agreed to sell a good to another party. In that case, the artist is offered to buy the work for the same price and conditions that the other party has agreed to. Thus the sale is guaranteed in either case and I therefore don't see how this stipulation offers anything to the artist besides the assurance that they can buy back their own work at an inflated price. As the artist has no say in the price or conditions of that sale, I have difficulty in understanding how such a clause could benefit them.

Far from protecting the artist, these uncommon stipulations thus bring risk and uncertainty for an artist if they ever found themselves in the already costly and demanding situation of having to fight their case in court.
Some of the other information Juist is Juist offers also isn't as exhaustive as they seem to presume. There are for example a number of agreements that attempt to shield the artist from any copyright infringement. That is all fair enough and to be expected, but simultaneously there are no guidelines for how an artist should act when another party holds a copyright over some part of their work.  For example, there is no information on what an artist should do if they hired a photographer to document one of their performances or if they commissioned someone to write a text that will become part of their painting. 

In either case, finding that their well-intended legal information was also likely to do some harm at the moments where the artists would need it most, I emailed the organisation with my findings and recommended that they let their information be double-checked by people with the relevant legal expertise. 
After a month or so I received a reply that their legal expert took a look at it and that she did find some things that were 'questionable' and that they would revise the contract. About a year has passed since and nothing has changed about this contract on their website.