Marketing Mondays: The Art Consultant Who Doesn't Pay

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Art consultants play an integral part in how art gets placed in private homes, in corporate collections, and in public and private institutions. Unlike dealers who focus on placing the work of artists from their own galleries, consultants move freely to acquire art for their various clients, buying directly from artists or art fairs, for instance, or working with a range of galleries in different cities, sometimes commissioning artwork as well. Some consultants work freelance, while others may be hired as independent contractors for specific private or institutional jobs. (Some lucky few are even on staff at the big corporate institutions.) From this point of view, they are unique in the way they are able to see a lot of art and to connect the dots widely. We love what they do. .

But when a consultant goes rogue, getting paid can become an ordeal, which is the subject of today's post.

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A friend and I both had work selected by a consultant, let’s call her Josephine Schmo, for the collection of a high-profile medical institution in a large city in the Northeast. My friend made the sale directly, I worked through my dealer.

The sales were made in the first quarter of 2009. Payment would be made, said the consultant, when the work was installed in June. Well, OK, but when I buy a plane ticket, I’m billed when the transaction is made, not when I board the plane. June turned into September. The checks were “in the mail.” Then they were “in the mail.” And then they were still “in the mail.” At the end of the year, after numerous calls to this consultant, my dealer received partial payment and paid me in full.

“It’s my job to make sure you get paid,” said my dealer. (Bless her! This is just one of the reasons I never begrudge a dealer’s commission.) She then contacted the institution that had the work, and someone from the acquisition committee made sure a check for the balance arrived promptly.

My friend who made the direct sale is still waiting to get paid. She’s made numerous phone calls to this consultant and resubmitted the bill to her several times but has heard nothing.

If you do not have a dealer in your corner—and maybe even if you do—how do you handle a situation like this? Some thoughts (this is not legal advice, however, as I am not an attorney):

1) Contact the Volunteer Lawyers for the Arts in your city or region. This wonderful organization helps artists pro bono. Indeed, it turns out that another friend who had dealt directly with this same rogue consultant is also owed money; she’s working with a VLA to get payment for a rather large sum. If you work with a VLA lawyer, or any lawyer, work with the lawyer and disregard the rest of this post.

2) Find out who’s on the acquisitions committee of the institution for which this consultant works. You could go through a friend of a friend to get the information, but in terms of making the contact, you should do that yourself. You might prepare a letter to the director and members of the committee outlining the circumstances of the situation: the name of the consultant, date the work was picked up by her or delivered to her, a description of the artworks, money owed, date payment was expected, and the utter lack of response from the consultant. Include digital images of the work and copies of the initial paperwork. The acquisition committee should be familiar with these new acquisitions.

It’s possible that the issue will be resolved at this point, as it was with my dealer. Indeed, as I was telling this story to a friend in New York, he exclaimed, "We had a problem with her, too!" His dealer left a message with the consultant saying that she, the dealer, was about to contact the acquisition committee. "The check arrived the next day via Fed Ex," said my friend.

If financial resolution does not seem possible, you could remind the committee that this consultant who has not paid you was in fact engaged by them. If they can’t pay you, why not ask that your work be returned to you? If nothing happens . . .

3) Turn to the local/regional art institutions, cultural councils and other non-profit organizations whose mission is to support art and artists. They may have advice, leads, legal contacts. Concurrently you might. . . .

4) Turn to the local press, particularly the writers who cover the art/culture beat—and certainly the magazines and blogs in the region that cover the arts. Tell each one your story, succinctly. If the story is bigger than just you, say so. If you know of others and have their permission, note their names and particulars as well. If a reporter smells a good story, she’ll do what reporters do: contact the institution, the consultant, the other artists.

It’s possible that the resulting attention to the institution and the consultant will force the issue to be resolved. (The institution may even wish to pursue a legal issue against the consultant.) If you have received no satisfaction at this point . . .

5) You might take your issue to the airwaves. Many TV stations have a consumer advocate. Figure out the angle to interest them. For instance, if the collection is in a world-class medical institution, it would be ironic that an institution whose mission is to heal—and indeed whose art collection is intended to provide a calm visual oasis for its clients— can inadvertently cause such pain for the artist/s who created the work. But your pitch is not woe-is-me; it’s a consumer issue. They bought; you (and possibly others) didn’t get paid. Those TV segments seem to always get a quick resolution. Don’t be daunted if one station turns you down. There are others. Refine your pitch. Keep trying.

If you’ve gotten no satisfaction . . .

6) Start a blog called Josephine Schmo Has Not Paid Me. Tell your story. Show images of the work for which you have not yet been paid. If it’s possible to get into the institution to photograph your work in situ, do it. I’m not suggesting you break in. Many private institutions have public spaces, or make an appointment to see the collection. Ask for other artists and dealers to contact you privately if they are in the same situation—but encourage them to post their stories in the Comments section of the blog. Try to organize everyone who has not yet been paid. As a group you have more leverage, either in bringing the issue to a VLA lawyer, or in hiring a lawyer, or in presenting a unified face to the acquisitions committee of the institution, or even to the press.

If you’re worried about being sued for slander, know this: It’s not slander if it’s the truth. So while it’s likely libelous to say, “Josephine Schmo is a lying thief who rips off artists, steals children’s lunches, kicks dogs and smells funny” (unless you have incontrovertible proof), it’s entirely reasonable and legal to relate your experience: “Josephine Schmo has not paid me for artwork she purchased from me. Moreover, after having left repeated messages on her voicemail and email over a period of six months, I have not received a response from her.”

But at this point if the issue has not been resolved, you really do need legal advice and help. You may also need to press charges. Because let’s be clear: If a consultant sells your work and receives money for that sale and then and doesn’t pay you your share, that’s theft. She could be arrested.

If you’re concerned about not selling your work via this consultant again, what have you lost? You’re never going to do business with her again.

Now, over to you.
. Artists and dealers, have you been the victim of a rogue consultant?
. Have you taken legal action?
. Has the issue been resolved to your satisfaction?
. Do we have any consultants who are reading? What would you suggest an artist do?
. Do we have any attorneys in the house? How about a little pro bono advice?