At exhibition openings, by mail and over the telephone, art collectors regularly ask Northampton, Massachusetts painter Scott Prior to produce works just for them. Sometimes, these collectors suggest an image they want him to paint. Most of the time, they simply tell him, "I want anything." Money and praise are offered, but Prior approaches these offers warily. "I'm not encouraging," he said. "For every 10 people who ask me to do something, I may do one. When I don't know the person, how can I be confident there won't be problems down the road? With strangers, I don't even know what the problems might be."
Actually, Prior knows generally what the problems are if not the particulars of a specific collector. He may find himself dickering over the price with "someone who thought that going to the artist directly means paying less. For me, it doesn't." Commissioned paintings aren't shown in galleries, which for a slow-producing artist like Prior means that they take away from his main form of promoting work, and hold less prestige than pictures he created on his own initiative. These works also take more time than others, because of the need for meetings, telephone conversations and making appointments. "I had agreed to do a portrait of a woman in Boston, but just the time it takes to drive to Boston and back, taking photographs, talking with her and negotiating this, that and the other was more than I could spare. I had to write her a letter asking to be let out of our agreement, because I just don't know when I'll ever get to do it."
There may be other problems as well, including the possibility that the collector may not like the work when it is completed. "People wanting to commission a piece say, 'I have this in mind,' but it's hard to interpret what they actually have in mind," one artist said. "There have been touchy situations where people are not satisfied. You don't really know what they had in mind."
Usually, the first step in arranging a commission involves the collector coming to the artist's studio to look at earlier work -- the actual pieces or photographs of them -- "to see if there's anything they like," Prior said.
For New York sculptor Alice Aycock, who doesn't "have stock items," she assumes that "anyone who would commission me would know my work pretty well." She and the collector have an extended conversation about what the individual wants, after which she makes "a drawing of the proposed piece and, if that is approved, I will price the work."
Her price includes the entire cost of designing and fabricating the piece, plus a mark-up of between 10 and 20 percent as profit. If the collector's price restraints come up early in the conversation, however, she can "design to a budget." Prior works on verbal agreements, but Aycock, who has received a number of both public and private commissions over the years, writes her own contracts ("I have enough contracts around that I can refer to them in writing up my own"), occasionally consulting a lawyer. The contractual points in these contracts include: how the sculpture will be constructed and installed, payment by the collector (usually in installments, such as one-third deposit, another third when the piece is half done and the final third after the work is installed), timeliness (when work will be completed, when final payment is due), who pays for insurance (in shipping and installing the work as well as liability insurance), who pays for shipping and installing the piece, who controls the design (the artist) and that there will be no alterations in the final work (unless approved by the artist).
The contract would also clearly state that the artist owns the copyright including photographic rights to the work. If the work will be photographed and those images are to be used in some manner, such as on a company's stationery, the artist would charge an extra (negotiable) fee. There may also be provisions for mediation (if there are disputes), legal expenses (if the artist isn't paid on time and must sue), reimbursing the artist for travel (food, lodging, transportation) and framing (selecting and paying for it). Daniel Greene, a portrait painter in North Salem, New York, noted that his New York City framer sends him photographs of a variety of different frames, from which he and the individual or group commissioning the portrait make a selection. "If convenient, I try to meet with the client or committee to see what other portraits they may have commissioned, to see how they are framed, to see where my portrait will be hung and what might be relevant to the background," he said.
At times, the collector or commissioning agent will write a contractual agreement, which may be brought to a lawyer for review or handled solely by an artist who feels confident in the terminology and the area of law. When Neil Estern was selected by the federal government as the main sculptor of the Franklin Roosevelt Memorial in Washington, D.C., he was sent a 40-page contract "of which maybe seven pages referred to me and what I was going to be doing. They piled responsibilities on me that I didn't want, such as insurance that I don't want to carry and crating and shipping that I won't be responsible for. I rewrote those seven pages to make them more to my liking, and I never heard a complaint."
Commissioned work usually involves having the piece approved by the buyer during one or more steps of the creation process -- for instance, the design or half-way done or at the end. (Collectors who only buy work from exhibitions, on the other hand, approve or disapprove of the artwork on the basis of their decision whether or not to purchase it.) In addition to the design, Aycock allows an inspection of the work in progress, while Estern's work may be approved as a design, in clay and when completed. Commissioned art tends to be more collaborative, and the artist must be willing to work the collector during the process of creation, which may bring up issues of personal confidence and integrity. "You have to know where to draw a line and where to bend a little," Gillespie said. "If I'm doing someone's portrait and the guy says, 'I can't stand this painting,' I might be open to certain suggestions. If he says, 'My wife is allergic to yellow,' I might tone down the yellow. But if they want a totally different painting, they have to go to a different artist."
Greene noted that he asks for a one-third deposit and bills for the remaining two-thirds after the portrait has been completed. "I don't ask for a second one-third payment, because that would suggest that they should approve the work in-progress," he said. "If they don't like the final work, they don't have to take it -- that's my guarantee -- but I won't make changes in the middle." To protect himself from possible rejections, Prior noted that "I won't do a painting on commission that I wouldn't do anyway."