The Law Gorgeous is a new column by TheArtGorgeous where columnists and art lawyers Alana Kushnir and Yayoi Shionoiri answer your art world questions. Email your art x law worries to [email protected]
I can’t yet bring myself to buy art online, but I should start, because I think it’s going to continue to be more prevalent than ever before. Any advice?
While buying art online has become more akin to ordering our groceries through an app and having them delivered to us, trading our limited edition designer sneakers on an eCommerce marketplace, or buying stocks online, many of us still have a hard time doing it.
The initial hurdle of finding that special work you want to have or artist you want to support can be overcome as long as you’re willing to put in the time. There are ample ways to look and learn about art online — whether through your favorite artist’s Instagram account; gallery websites that often include additional content such as OVRs for fairs, videos about artists and works, and even high-quality livestreamed programming; online journals and art world news sites; and institutional websites. The more time you spend, we think you will naturally gravitate towards specific types of content, and that’s ok, too.
Once you’ve found a new artist you want to support or a specific artwork you want to have, however, the transaction may require a bit of a leap of faith. In order to cover off potential risks, we think it is still worth your time to do your due diligence, even if you unexpectedly find yourself bidding real-time in an online auction (although, in that case, maybe you need a wing-person helping you as you focus on those bids!) Figure out what channels offer the artist or the artwork in question — if it’s a primary market work, is it directly through a gallery website, or on an online marketplace? If it’s a secondary work, is it through a gallery website or an auction house website? Do any of these channels offer an opportunity for you to ask questions about the artist or the work before committing to purchase? Can you request additional good quality images? Do you know the dimensions of the work, and will it fit where you intend to proudly display it?
While a more traditional eCommerce transaction makes it as easy as possible for you to order and receive your purchases, buying art online is a bit more bespoke. Everything that is usually considered a supplemental expense when purchasing art IRL is also applicable to online art transactions, including packing costs, shipping costs, sales and other applicable taxes, and framing and installation costs. Further, you want to make sure you understand the terms and conditions that are automatically applicable to your transaction. Specifically with respect to payment, what methods can you use? Is it an automatic check-out process (or takes additional communication with the selling entity)?
Perhaps some of the largest concern areas relate to whether there are options to return the work, and whether there are any restrictions on resale. Some online artwork transactions still do not allow for refunds, whether you believe you have good reason to request a refund or otherwise. A “no refunds” condition should be listed in the terms and conditions, either in the purchase and sale agreement or in the conditions of sale. Even if you end up attempting to negotiate your way out of the condition, you should be aware whether it exists in the first place. Further, if a refund is permitted, you want to be aware whether there are specific conditions with which you have to comply. Finally, depending where your transaction takes place, there may be certain applicable consumer laws and implied contract terms that may protect you as a consumer, but, in general, they will likely be less applicable than if you’re buying ordinary consumer products.
Finally, some transactions may have restrictions on resale. Sometimes you will be expected to hold onto an artwork for at least a set period of time. After the period expires, you may be permitted to resell, but you may have to first offer it back to the artist or an identified third party so that the artist effectively has the right of first offer. At least under New York law, if these restrictions are put in specific writing, and there is evidence that you have agreed to these restrictions (for example, through a signature), then, you will be bound to that obligation. Be mindful that if your transaction is taking place outside of New York, a resale restriction may not be considered a valid contractual term. However, this concern is a legal grey area, as it has not been considered before a court. So, if you notice that such a restriction exists as part of the blanket terms and conditions applicable to the transaction, and you do not want to be bound, then, it’s worth bringing it up to the seller.
Best of luck on your art adventures online, and here’s hoping you find artists and artwork you love!
This article is of a general nature only and should not be considered specific advice.
Yayoi Shionoiri is an art lawyer and the Executive Director of the Chris Burden Estate and the Nancy Rubins Studio. Find her on Instagram here and at her website here. Alana Kushnir is the Founder and Director of Guest Work Agency, an art law and advisory firm based in Australia but international in reach. She is also the Principal Investigator of the Serpentine’s Legal Lab. Find her on Instagram here and LinkedIn here.
