legal issues

All posts in the legal issues category


Published December 25, 2017 by Gail Daley Writer & Artist

Choosing a gallery is NOT a matter of taking the first offer you get from a gallery, or taking a recommendation from your Uncle’s cousin. It is also not about showing trust in humanity. Choosing a Gallery to represent art can be one of the most important decisions an artist can make. This decision will affect who sees the art, and consequently who buys it. An artist is an equal partner with the Gallery: The artist supplies the product sold and the Gallery in turn supplies the selling venue. Neither party can exist without the other. If an artist chooses poorly, it reflects on both the artist and on the art. Art is a business as well as a creative endeavor.  If an artist is pursuing art as a career and not as a hobby artists need to be aware of legal issues that can affect them. Most artists benefit from showing their art at Commercial Galleries (nuts and bolts). Unfortunately, not all commercial galleries are created equal. Some are aboveboard and have excellent reputations and ethics. Others do not. Commercial art galleries derive their profit from sales of artwork, and thus take great care to select art and artists that they believe will sell and enhance their gallery’s reputation. They spend time and money cultivating collectors. If the artwork sells, the gallery makes a profit and the artist is then paid. It is not unusual for a commercial art gallery to charge a 50% commission on sales. Before entering into partnership with a new gallery, the artist should do what any responsible person would do before entering into a contract: check it out with the local Better Business Bureau and Chamber of Commerce. Ask to speak to other artists who are under contract. Do they make sales? Does the gallery pay on time when a sale is made? Does the gallery make sales of an artist’s work and not tell artists about it? What about advertising and publicity, how much does the gallery does and who pays for it? Artists should also attend a few of their receptions or events and see who is attending. If it is mostly other artists under contract, very few sales will be made. A successful commercial gallery will be in a location where there is a high volume of foot traffic and visited by a lot of art fans is ideal. A location such as this may be pricey, but if an audience is already there and primed to visit the gallery with the intent to buy, less can be spent on advertising to drive buyers to see the work.


Surprisingly there are a number of on-line and nuts and bolts alternatives for choosing where you will show your art. The words “on-line art gallery” can mean different things, however; an online art gallery most likely will be a website to display and sell art. For example: 1) An on-line art gallery can be displaying art work from their current, future, or past exhibitions, and be set up to promote the exhibition rather than to sell the work via the website.  2)  An artist presenting his/her own gallery, either on his own website and 3) Multi-Artist Sites or shared websites (ArtId, Fine Art America, Etsy, etc.), representing many artists working in different medias and genres. On a multi-artist site the artist either pays a monthly fee or agrees to a commission paid when the work is sold. These are usually non-exclusive and are a risk free opportunity for the artist to sell art worldwide. Search for them using “original art” or “online art gallery”. The advantage of Online Galleries is that while the art buying public is growing, many people are still intimidated by walk-in commercial Art Galleries. If a potential buyer has access to a wide range of art viewed in the comfort and safety of their own home, they may relax and make a purchase. A lot of artists now have an online Gallery as well as a walk-in commercial Gallery, which means that an artist can present a lot more art to a lot more people.

Beginning artists can be confused by Vanity Galleries because Vanity Galleries are not the only type of gallery that charges a fee to the artist; a vanity gallery charges artists fees to exhibit their work and makes most of its money from the artists rather than from sales to the public. Some vanity galleries charge a lump sum to arrange an exhibition, while others ask artists to pay regular membership fees and then promise to organize an exhibition with a certain period. Occasionally a vanity gallery will appear to have a selection process because the number of artists on the membership roster cannot exceed the available time slots for shows. Vanity galleries have no incentive to sell art, as they have already been paid by the artist. They are not selective because they don’t have to be. Most Professional critics and reviewers tend to avoid them.

Cooperative galleries (sometimes called artist-run initiatives), are galleries operated by groups of artists who pool their resources to staff the gallery, pay for gallery space, exhibits and publicity. Most cooperative galleries carefully jury their members. Also, most, galleries of this type do require membership fees. Sometimes members must share the overhead cost of operating the gallery.

Before joining a gallery or on-line site, it is a good idea to check out their sales record. Talk or e-mail artists using the site and ask their opinion of the Gallery.




Published December 18, 2017 by Gail Daley Writer & Artist

Art is a business, and like any business, it is necessary to keep track of expenses as well as income. While you can do this by hand, nothing beats a computer program to track stuff!  I have been searching for a comprehensive program for my art business for years. While there are some all-inclusive programs beginning to be developed, I have usually found some flaw in the program; either they were hard to use, or had an incompatible photo program for thumbnails of my art, etc. There are a couple of new companies with programs designed for artists out on the internet (see links below).  DISCLAIMER: Please keep in mind that I have no practical experience with any of these programs except Working Artist. It is up to you to check them out and decide if you want to use them. Here are some links to potential art software sites along with what information I have on them:  (Free evaluation copy available) Current pricing is £150.00 (I assume this is British pounds or some type of Euro symbol).  Retails for either $59.00 or $129.00 depending on whether you want just the basic system or their Pro program.  this system says it will link to QuickBooks, web manager and has a system for I-Pad. It is also VERY expensive; licensing for this puppy runs anywhere from $5,000 down to $795.00.   Retails out for between $139 — $154 with upgrades for $59. This one comes in 4 separate editions 1) a studio edition designed for agents representing several artists, 2) The artist edition, designed the single artist to manager their business. The site also claims to have an edition for Art Fairs and for Galleries, but I wasn’t able to access them by clicking on them. This is the only one of these software programs I have any actual working knowledge of, and it was about 10 years ago that I tried to use a free trial download. At that time, I experienced considerable difficulty in uploading photos of my work into the program, as it would not accept jpeg versions for some reason. I assume they would have corrected this issue in the intervening time.  this one says it will manage inventory, contact, point of sale, has art web site templates, e-mail marketing and is available for MAC & PC. This is not that unusual as ALL of the software programs say they have both MAC & PC versions. Pricing for individual artists is $29/month, which works out to about $348 a year. Like Working Artist, this set up also has different programs for Galleries, stores consignment stores, museums, etc.

If you don’t want to purchase an expensive program, you can simply use an excel spreadsheet to track income and expenses but it is very time consuming. For expense tracking, I would recommend QuickBooks to track your expenses and income. QuickBooks, while a little on the expensive side is pretty user friendly and easily transitions into tax software programs such as Turbo Tax when it comes time to file your income tax. Unfortunately, I have heard rumors that it doesn’t mesh as well with Apple products as it does PCs. If you simply want to go the excel program route and manually track stuff, you can access copies of my system at

Yes, Virginia, I am actually using three programs to track my art and my expenses. QuickBooks for income and expenses, two spreadsheets that tell me where my art is at any given time; (Current Location Report and Painting Information Sheets) to track awards, income from each painting or prints made from it. I also use a photo file  with different sized images of my art for various uses (webpage, large-sized prints, and specific sizes for on-line show entries).

For Photo Editing I use Photoshop Elements because it is less pricey than the full Adobe editing program and as a painter, I really don’t need the maximum amount of bells and whistles you get with the full Adobe Suite.

I can’t say this often enough; back up your data!

You should keep at least two types of photo records:

A photo log with both high- and low- resolution photos of your work, kept separately from your desktop computer. A working copy can be kept on the desktop, but be sure and back up your files each month onto a separate disc or jump drive.

To keep track of your business and be able to recover your files in a disaster, you will need:

A program or system to track income and expenses;

A record that includes an image of each piece of art created and its disposition or current location.

Keep back-up copies of these items in a separate place, And up-date your back-ups monthly. Once your records are lost due to computer crashes, natural disaster or any other reason they are gone. For this, you can purchase separate auxiliary drives that have as much memory as a desktop, or you can back your stuff up into a version of the cloud. There are a LOT of cloud backup systems out there now. Automatic systems such as I-Cloud, and manual systems like Dropbox. None of these are free and if you can’t keep up the payments, I don’t know how recoverable your records might be. Check them out.


Published November 27, 2017 by Gail Daley Writer & Artist

Some of you may feel guilty about promoting sales of your work. For those of you who do feel guilty about telling friends, past customers, family and acquaintances “Hey, consider buying from me when selecting art for your home or office or buying a book as a gift, let’s consider a few things. Do you know what the 80/20 Rule is? Well it says that 80% of money spent locally stays in circulation locally. By promoting the idea of buying your art, you are contributing to the health of your neighborhood! When someone buys art from you, they provide you with money, which you in return spend on groceries, rent, clothing and other stuff (which hopefully you also bought in a local business!)

Sales tax spent with you supports local infrastructure, police, fire and schools. Money stays with the community when spent in local businesses. The Tax Policy Center: (click here for the entire article), says, “Local governments received transfers from both the federal and state governments equal to about one-seventh of total revenue. From their own sources, they collected about $700 billion, or 17 percent of all government revenue.” When your friends and family buy from you, they are helping to return money to their local economy, so you should feel no hesitation in pointing out to them that your work can be a resource for their decorating projects!

Spending money locally shows pride in their community culture and local products. As a person who lives in the area you are more apt to locally recirculate money your friends’ family and acquaintances spent with you on your art in the form of purchases from other local business, thus supporting the local work force. When you give some of that money to local charities, even if it is just the local boy or Girl Scout troop, or maybe the local food bank, you are keeping money spent with you in movement. It’s a fiscal circle that keeps people working to make the stuff they and others buy.

“I’m an artist/writer, not a business person”, you shout. Well, I hate to break this to you, but anyone who wants to sell his or her art or books is in business. According to Wikipedia, “a business (also known as enterprise or firm) is an organization or person engaged in the trade or sale of goods, services, or both to consumers”. Q.E.D. Business is NOT a dirty word. Businesses allow us as consumers to buy food, clothes, and gas. It allows us to find a place to live (real estate sales and rentals), and most likely it employs a lot of us who are not fortunate enough to be able to make a living selling our work. OOPS! There is that word “sell” again.

Local Business Can Support Local Artists and Writers

  • Local business can provide a mutual support base by being willing to allow artists and writers to display their work for sale in their stores and offices. The artist or writer will come in to see their art and most likely buy something from the business. They will also promote the business by telling their sphere of friends and family about having art or books on display in the business and urging them to come and see it.
  • Allowing creative people to promote shows, book signings, sales and event by displaying flyers in local business helps develop a mutual dependency.

Local Artists Offer

1 on 1 personal contact with artist/writer
Cachet to


Unique Versatile gifts for each individual

Support Base

Buy Art

or Books From Local Writers  & Artists

and artists

What value does the community receive when they purchase art from a local artist rather than from a national chain store?

  • Well-made handcrafted items give a cachet to their office, home and gift giving. When giving gifts it shows the buyer not only thought enough of the person receiving the gift to take into account that person’s personal tastes, but also took the time to check the gift out carefully.
  • Buying art and books from local artists and writers gives the opportunity for a one-on-one personal experience and gives buyers an opportunity to develop a personal and professional relationship with the artist or writer.
  • Books and Art are individually created unique, versatile items. Why buy something indistinguishable from what everyone else is buying?

What YOU As The Artist Or Writer Can Do To Promote Sales In Your Neighborhood This Holiday Season:

  • Remind past clients, friends, and family, church and organization members that you are a resource for buying holiday gifts or décor items.
  • Offer items for sale as “Sales specials”.
  • Offer a bonus or discount off a future purchase if the buyer refers another buyer who actually purchases your work. This type of promotion is done all the time in other industries; it is sometimes called a “referral commission’. No money is actually paid until the other buyer makes his/her purchase and mentions the name (or brings in a coupon) of the referring buyer.
  • Artists can adapt some art into small affordable reproductions (cards, small prints, puzzles, ornaments, cups, etc.) for sale at a holiday boutique or Studio Open House.
  • Writers can arrange book signings at local boutiques, stores or other holiday events.
  • Send past clients, friends and neighboring businesses postcards showing your work and invite them to view it in person at a local book signing, show or gallery.
  • Take advantage of the local Art Scene by inviting a selected few to come with you on Art Hop nights and show them to galleries where your work is being sold.


Published November 20, 2017 by Gail Daley Writer & Artist

If you have a professional studio or gallery outside your home you probably will need additional coverage for fire and theft for that space. If you have events (open gallery nights, art shows, classes, etc.) then you will probably also need liability insurance to cover anyone attending events there. You should discuss the amount of coverage you will need with your insurance carrier.


The answer to that is maybe. Unless your homeowners insurance has an exclusion forbidding you to work out of your home, you probably are covered for fire and theft since the art you create can be considered personal property. If you need to make a claim, the carrier will require documentation. That is why it is important to keep good records of what you painted. You should consult your insurance carrier as to how much they will cover for each art piece. Don’t make assumptions and get stuff in writing!


Your regular carrier might not have contacts in this area; However, Local art groups have to carry event insurance for their art shows. Get in touch with them and ask for a referral to their insurance carrier. The carrier they are using may be a lot less expensive than someone unfamiliar with this type of coverage.


What protection do I as a vendor need for my art and my possessions?  What protection do I need if someone is hurt within my stall? What protection does the venue carry for fire, theft, personal liability? What about fire or other damage caused by an accident in another person’s booth that then adversely affects mine? Ask all the “what if” questions you can think of and then make your own determination about participating. Also, check into whether there is an insurance contract and what the terms of the contract may be before signing and have your own insurance agent look it over first as well as an attorney if there are things you don’t understand. Never assume, always ask for clarifications and get them in writing.

If you are displaying your art someplace like a restaurant, gallery or other space, most likely you will need to make arrangements with the owner regarding theft or damage to your art. My carrier won’t cover my art outside my home unless I want to pay big bucks, which I can’t afford. A lot of art shows carry riders to this effect also.


Questions concerning the actual amount and type of insurance you might need for a booth event (art fair, etc.) cannot be answered by anyone other than your insurance carrier. At a minimum you probably want some sort of theft and personal liability coverage but I don’t have any knowledge of what California requires or recommends. The venue holding the event may have requirements for coverage also; they may want a rider from your company naming them as an additional insured for the day of the event. Whatever their requirements are—get it in writing!



Published November 13, 2017 by Gail Daley Writer & Artist

Most states regulate construction contractors. In California, the Contractors State License Board (CSLB) was created to protect consumers by licensing and regulating California’s construction industry. Visual Artists and visual art does not usually come under construction laws, however there is one facet of the visual art world that does: Murals. Wikipedia defines murals as any piece of artwork painted or applied directly on a wall ceiling or other large permanent surface. For instance if you are invited to paint a mural on the wall of your doctor’s office and you were paid more than $500,  under California construction laws, you might need a Contractor’s License. Artists may not be aware that they could be violating California state licensing laws if they were paid more than $500 to paint a mural on a permanent structure i.e. a house or office wall, outside building, etc… The C-33 Painting and Decorating license section covers painting a mural on a permanent structure. Individuals who limit their practice to that of an artist could also be covered under either D-64 (non-specialized contractor designation) or C-61 (Limited Specialty contractor classification).  If an artist is paid more than $500 (labor and materials) to paint a mural on a permanent structure, they are subject to state contractor licensing laws under the Business and Professions Code Section 7026. As of this year, there still is no license classification for specifically for an artist painting art on walls or buildings, so artists are forced to apply for the general painting contractor’s license.

Requirements for C-33 licensing can be pretty stiff (and expensive); you must pass the state law and business exam in addition to the trade exam related to painting. Cost:  Initial app fee $300, App to add a supplemental Classification $75, Home improvement salesperson (HIS) registration fee $75, etc… Then it has to be renewed each year.  In addition to the license itself, CSLB always requires worker’s comp insurance on most projects if anyone but you do any part of the work. Then there are the bond requirements for a General License;  “D” class licenses on the other hand may be less expensive to obtain since potential contactors are only required to pass the law and business exams. However, the tests themselves are quite complicated and most potential contractors actually take courses designed to help them pass the tests (this is not free either).

I don’t know if this could affect you if you merely provided the design for a mural and didn’t actually paint it or otherwise install it. I also don’t know if this covers the donated designs.

According to the latest CSLB newsletter, an increased number of inquiries and complaints from consumers about licensing requirements for artists creating murals have caused the CSLB to tighten up on enforcement in this area so watch out for stings!

For More info: California State Licensing Board    Contractors State License Board Protecting and informing consumers and contractors about proper contracting.



Published September 4, 2017 by Gail Daley Writer & Artist

By the Practical Artist

This is the time of year when creatives like us get tapped to donate our work to worthy causes. The phone rings, and some well-meaning fundraiser on the other end wants you to donate a work of art to their charity auction. Usually this goodhearted fundraiser will promise you a tax deduction, great exposure, enhanced publicity, and public exposure if you agree; sadly, most volunteer fundraisers don’t know what they are talking about as far as the actual benefits to you as an artist. Should you do it? This really depends on several things; how much do you support the cause itself? Are the benefits going to out-weigh the costs?

Well lets deal with the tax deduction benefit first. It’s not great. Generally speaking, you as the artist are allowed to deduct only the cost of creation (materials, etc.) unless you have had an appraisal done by a qualified art expert. This is no problem if you are a big name artist whose art is going to bring in thousands of dollars to the charity because the charity will usually have the art appraised by their expert, which you can then attach to your taxes. However, if you are donating to your child’s school, your church, local hospital, etc. chances are the charity is not going to pay for this appraisal because they can’t afford it. Sometimes the charity is worthwhile (in fact most of the time), but unless they follow my rules for donation, what they are really doing is training whoever comes to their event to devalue my art and disrespect me as an artist. This may sound really harsh but it has been proven to be true.

The next two items typically promoted by fundraisers are “enhanced publicity and public exposure” which sounds really good, but what exactly are they actually talking about? A line in the auction catalog and announcing your name when they bring up your art? Please. Remember that most of the fundraisers who do telephone contacts are volunteers with no actual experience in the field. In other words they really have no idea what they are talking about. Enhanced publicity should mean your name in the newspaper, on the radio or on the charity’s Facebook page with a link to your website. Public exposure should mean that instead of just pointing to your art and asking for bids, the auctioneer talks about you, what awards you’ve won, how good the art is, etc. to encourage the audience to bid higher. He or she should also mention your web site, and the brochures advertising you as an artist, which should have been available when the bidders were doing the walk-through.

Predictably, at most of these charity events, they practically give away the art because the bidders are not art collectors, they are there to support the charity and are looking for two things—something they can afford to bid on to satisfy their tax deduction and to support the charity. A lot of them might be even comparing your fine art to canvas prints they can get at a department store! Auctioning your art for much less than you normally sell for undermines the art market in general, and makes it seem as if the artist (you!) didn’t deserve the real selling price. Another negative side effect is to encourage your regular collectors and potential buyers to wait for events like this to buy your art cheaper than they could if they purchased it directly from you.

The “public exposure” thing is problematical; unless the auctioneer makes a really big deal about your art business and how valuable your work is, everyone present is likely to still think you have a nice hobby. I was once asked by my church to design a poster/logo for a women’s retreat. When the event coordinators husband saw it he remarked to her that it looked like a “real” artist had done it. I find that no matter how good the art I donate to their event is, my circle of acquaintances in my church, my children’s school and my family almost all still believe that my art is a hobby, so I don’t donate unless the charity agrees to the following ground rules:


  • I set a minimum price for original art. If it doesn’t sell, I get it back. This is absolutely essential because unless you have an appraisal from a respectable appraiser attached to the art; all that you can take off on your taxes is the cost of material used to create the art.
  • I qualify the event by making sure there will be folks there who can actually afford to purchase the art (this means getting actual names of who will be attending or at least who has been invited), and that the event will be well publicized: this means actual ads on TV, Internet, and Radio, hopefully with a mention of the art you are donating.

Once charities learned I stuck to these rules, I found that the requests dropped off dramatically. This doesn’t mean that I am wholly against art donations; I do donate my art to worthwhile charities, but I find that it usually pays better tax deduction-wise to donate a good quality print than the original. If you donate a print, you can deduct the entire printing cost, framing and matting which is a much better deal for tax purposes. To sweeten the pot for prospective buyers, I do always sign prints that I donate, and make sure I tape information about myself, my website and the art to the back of the print.
Good Luck



Using Celebrities As Art Subjects

Published March 20, 2017 by Gail Daley Writer & Artist

The Practical Artist’s Blog

Have you ever been tempted to include a celebrity portrait in your art portfolio? Say you are entering a theme show and there is a celebrity whose very image just screams “I am this theme” i.e. General Patton or Pappy Boynton for WWII, Clint Eastwood or John Wayne for western art, Mohammed Ali, or an Olympic swim star for a sports theme, etc.? Well if you do use a celebrity without gaining the proper permissions, you could be sued for copyright violations under something called “the right of publicity” laws.

I became curious about this when a young artist used a drawing of a western icon as an entry in a local art show. I remembered reading about the case of a company being sued when they used President Obama’s image advertising a product on their billboard. I did some on-line investigating and found some interesting information. I discovered that public figures could actually copyright their image under some state copyright laws. This was especially informative to me because I had always thought that copyright was a federal law, not a state one. In my research, I discovered that both are true. In other words, you have federal copyright laws and the states can make additions to these laws that could affect us as visual artists. Copyright law may also vary from Country to Country.

What exactly are the rights copyright concerning publicity laws in regards to public figures? Public figures include politicians, celebrities, and any other person who has put themselves in the public spotlight or has greater than normal access to the media.

Wikipedia:, defines these laws, as “The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual (to varying degrees depending on the jurisdiction). In the United States, the Right of Publicity is a state law based right, as opposed to federal based right, and recognition of the right can vary from state to state. The Celebrities Rights Act was passed in California in 1985 and it extended the personality rights for a celebrity to 70 years after their death.” There are other portions of California’s privacy laws to protect non-celebrity individuals but they not the subject of this blog and may be covered later.

Further reading tells me that even if your artistic source matter is a photograph taken by you of the celebrity or public figure in question, you might still be liable for violation of the right of publicity act if you invaded the privacy of the person in question to obtain the reference photo. An individual’s right of privacy or publicity is infringed when their name, voice, signature, photograph or likeness appears in a work of art and (a) can clearly be recognized as the subject shown in the work, (2) the subject has not consented to their image being used, and (3) the circumstances under which the photo was taken fit one of the following scenarios. Invading the subject’s privacy by encroaching into their private affairs. This covers events occurring in private or semi-private places: i.e. someone’s home or an invitation only event. Invading the subject’s privacy by the public disclosure of embarrassing facts not generally known. For instance if you take a photograph of a celebrity and then use the photo to paint them in the nude, or publish a photo of them embracing someone not their spouse this might be construed as being invasion of privacy. Invading the subject’s privacy by commercial appropriation. Using President Obama’s image to sell a product on the billboard was a clear example of this type of invasion.

Now I am not a lawyer, but common sense tells me why take the chance? Even if you win, a lawsuit is expensive and time-wasting and just being dragged into court over something like this could damage your reputation as an artist. If you would like more information on this subject, there are several good sites on the internet.–435063.html

This is a Case out of New York State concerning a sculpture using Cheryl Teigs legs in a sculpture. Recent verdicts expand artists’ rights in celebrity depiction …


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