Marketing Mondays: The Art Consultant Who Doesn't Pay

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.


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?


Tamar said...

Terrific topic -- in trying to get the work out there and sold, we often take big risks. Your list of steps to take is excellent, but I caution against a very public campaign against a specific consultant. While you wouldn't want to work with that consultant again, you might end up on the no-buy list of several other people.

I do want to add a reminder about the importance of paperwork. Take record keeping seriously--you want to be treated in a business like manner, then behave (at least with paperwork) like a business. A thorough paper trail saved me on two occasions when I was faced with going to small claims court (yes, the amount of $ way back then was modest but the principle is the same). The offending dealer and consultant paid up before we actually went to court when they saw I had such detailed records (which I sent to them by registered mail so they wouldn't just toss the letter aside).

First, don't let anything leave the studio without a signed consignment memo that lists all pertinent details. Make sure to get all sales confirmed in writing (again with details). If the consultant doesn't send you a written confirmation, write it up yourself and ask for a signed copy to be returned. Keep a written log of phone conversations (with the consultant and any assistants). Keep all emails until you've been paid. If you're lucky the embarrassment factor kicks in when a consultant sees how many times she promised payment and didn't come through.

Of course, there are some incredibly sleazy folks out there who will do everything to avoid paying up. And they seem to get away with it over and over again.

Anonymous said...

Starting a blog, or other form of public shaming, could boomerang back against the artist; I'd be pretty leery of doing that. Shaming privately might be a better route, via the other recommendations you make here.

Anonymous said...

Tamar is absolutely correct, make sure you have a dated, signed invoice, or at the very least a consignment form detailing the specifics of the sale and payment arrangements with a signature on it, this will help you if you have to take this to court. Keep all shipping waybills and any records of your transactions.

The consultant may need to wait for payment from the client, so you need to know what the deal is before you go ahead with any legal or personal campaigns, these can be costly not only in terms of dollars but also time and even more, the emotional energy spent, its almost not worth it, you need to be sure you have the energy to follow through before you start.

And follow your gut, if it smells a little fishy, or too good to be true or you just feel a bit of a slime factor, don't let the work out of your hands until you have a check, not only in hand, but cleared at the bank--really cleared--not just made available, a bank has to make the funds available to you after a certain amount of time, but it doesn't necessarily mean the check has cleared.

andrea said...

My one experience with an art consultant was excellent, even though she/the job was in Texas and I'm in British Columbia. Of course the fact that she's (a) an artist herself and (b) paid 50% up front made it easy for me to accept the assignment. (The balance was paid promptly on delivery.) I know it's not always that clear cut, especially since the prospect of a paycheque rather than a consignment situation for most artists eking out a living means we really *want* it to work out, clouding our better judgement. A 50% down policy seems the best way to bridge that gap.

About the blog thing, a shady local dealer, one of whose galleries was called Gallery O, caused a couple of local artists to create this blog: http://galleryowe.blogspot.com/

Ann Bach said...

Excellent post per your usual Joanne. As a working artist and marketing consultant, I would add the following:
1. yes, have your paperwork in order; make sure you include clause by WHEN complete payment will be made.

2. Check your state's Small Claims Court maximum allowable (CT is $5k).

3. If payment isn't made, file claim and include documentation as evidence. Outcome will become public record in that state, searchable online.

Joanne Mattera said...

Thanks for these comments. I hope others will add to them.

I advocate a blog only as a last-resort measure. But it is a good way to gather others similarly treated, and to rally others around your cause. Simple truth may be inflammatory, but it's still the truth.

And, yes, I agree that a consultant may need to wait for payment. This is where communication comes in. But when an artist (or dealer) is met with "It's in the mail" repeatedly--or worse, no communication at all--this is not a matter of the consultant not being paid, it's the consultant not paying up.

I'm specifically leaving non-paying dealers out of this conversation. That's another topic for another time, I've learned with MM's to be as specific as possible and to try to keep the responses on track.

Lisa said...

I haven't used it yet for an art sale, but for my design work I've started requiring payment by PayPal. Yes, you lose ~3% from their fee, but I think it's worth it for the piece of mind. You could also add in shipping and handling to make up the difference.

diana green said...

Every time I read an entry like this or the entries on creators' rights over at Coleen Doran's superb blog, I'm reminded of the fallacy non-artist engage in: people who make art can't do anything else.
While it's true in a sense- people who create art are often driven to do so, and in that sense, no other pursuit will serve- in most ways, nothing cold be further from the truth. To be a good and successful artist, you need to understand math, psychology, business, physics, chemistry, and law, to say nothing of having good time management skills.
Art is the most demanding profession in that it requires mastery of so many others.
Just a general observation inspired by your post!

Robin Ann Walker said...

Joanne -- Great article with lots of really good suggestions. Art consultants like that give us honest folks a really bad name. I agree that keeping a paper trail is in everyone's best interest. As an art consultant I pay a 50% deposit to the artist for a commission. As an artist I require a 50% deposit to begin work. To me it's not a real deal until money has changed hands. I work with other art consultants who don't pay until they are paid by their client. I don't like that practice. Since as an art consultant I am requiring a 50% deposit from my client, that pays the hard costs, and I pay artists the deposit up front, and the balance when I receive the art. There are lots of ways to be financially creative, but I prefer the straightforward path.

Rafael Damast said...

Great topic and thanks Joanne for the very helpful information. I think artist have to keep in mind that they are independent contractor too. What they do is a business therefore they must practice due diligence. It won't hurt but it might just take a little more time.

There are some great comments on your blog. Cheers!

Chris Rywalt said...

Has anyone else said how great your dealer is for paying you in full? That's absolutely fantastic. Exactly the kind of dealer everyone should have.

I imagine if I rummaged through your pages here I could figure out who she is, but could you put her name out anyway? She deserves extra recognition.

Joanne Mattera said...


She is indeed a fabulous, wonderful dealer. I'm not saying her name because this whole situation has been messy and unpleasant, but I'm sure if you rummage around you could figure it out. Or I'll tell you next time I see you.

Dudley said...

A whole other topic I know, but I'm wondering if you've ever written about it or plan to: what about the person who buys art through a gallery, making a deposit but never responds to repeated contacts for full and final payment. In my case the gallery still has my artwork, but a year and a half later, doesn't know what to do next.

Joanne Mattera said...


I have no plans to write on such a topic, mainly because I'm writing from the artist's pount of view, not the gallery's. However I would say that your dealer--any dealer--should have a contract in place that outlines the terms of the sale--i.e. if the sale isn't completed in X amount of months, the transaction is void and any monies paid to that point would be forfeited to the gallery in payment for the work having been taken off the market.

For your situation, I asuggest you talk to a VLA attorney.

Chris Rywalt said...

But, Joanne, you're so awesome you show with about ninety galleries! How can I figure out which one's the good one?

Or...are they all good?

emma said...

Great advice, especially the use of arts lawyers. I am currently in consultation with lawyers regarding a cancelled project with a company which, upon further research, turns out to be a massive multinational... It doesn't feel like an individual like me can win against them, but at the least I can know that the advice I receive is the best... and that I won't look back and wonder what SHOULD have happened under the circumstances.

Fred Bell said...

I just ran into your really terrific blog. I've never been ripped off but I know these things happen. Maybe I will now be able to prevent it.

Lisa McShane said...

Great post and comments. I google everyone with whom I do business, just to see who's who and what's up. So if someone had a blog w/ unresolved issues, that would sure help steer me away from a potential problem.

Catherine Carter said...

I agree with Lisa about doing your research. It pays to check with other artists to find out which consultants are reputable and which aren't. I've been steered away from several consultants in the Boston area by artists whom these people have burned in the past, and in turn I've been able to tell other artists about the consultants I've found to be wonderful to work with. If word gets around about whom to avoid, these unprofessional consultants will find themselves out of luck.

Anonymous said...

Thank you, Joanne, for the illumination about about art consultants, very informative, but what if your dealer does not pay?

maria termini said...

I have had good luck getting my money by going to small claims court. The art work the consultants have is technically on consignment and your work is protected by the Massachusetts commercial code. Dealers and consultants are liable for up to three times the amount of the work. A few years back I was awarded double damages in a case against a dealer who left town and took my work with him and refused to return the work or the money to me after a thirty day letter of demand. You can do small claims yourself and do not need a lawyer. Likewise for a thirty-day letter of demand. I certainly would rather have a good working relationship with a consultant, but if they won't pay me or return my work in its original condition, I am not going to be a victim of theft.