Art Law Toolkit: Consignment Agreements, Provenance Research, and Claims

Summary. Worksheets, clause language, and letters for diligence, transactions, moral rights, and claims.

Tool 1 — Provenance worksheet

Flags to resolve:

• Any gap 1933–1945 in Europe
• Antiquity without pre-1970 documentation or an export permit
• Unnamed "private collection" for an extended period
• Transfers asserted without a source
• Physical evidence (labels, stamps, stencils) inconsistent with the chain

Physical evidence recorded: [photograph the back and edges; list every label, stencil, stamp, number, and old hardware]

Tool 2 — Database and archive search log

This log is the evidence of diligence. Save every dated result, including negative results.

Tool 3 — Bill of sale warranty language

§ ___ Seller's Representations and Warranties. Seller represents and warrants that:

(a) Title. Seller is the sole owner of the Work and has full right and authority to sell it; the Work is free of all liens, security interests, claims, and encumbrances; and no third party has asserted or, to Seller's knowledge, has any basis to assert any claim of ownership or possessory interest.

(b) Authenticity. The Work is by [artist], as described in the attached description, and is not a copy, reproduction, forgery, or work by another hand.

(c) Provenance. The provenance attached as Exhibit A is accurate and complete to Seller's knowledge, and Seller has disclosed every gap and every fact known to Seller bearing on the chain of ownership, including any transfer occurring in Europe between 1933 and 1945.

(d) Condition. Seller has disclosed all restoration, conservation, overpainting, relining, replacement of parts, and prior damage known to Seller, as set out in Exhibit B.

(e) Import and export. The Work was lawfully exported from its country of origin and lawfully imported into the United States, and Seller will deliver all documentation in Seller's possession.

(f) No copyright transfer. No copyright or reproduction right in the Work is transferred by this sale. [Or: state the license or assignment expressly.]

§ ___ Remedy. If any warranty in (a), (b), (c), or (e) is breached, Buyer may rescind by written notice given within [period] of discovery, whereupon Seller shall refund the full purchase price plus [costs of examination, transport, and insurance], against return of the Work. These remedies survive delivery and are in addition to all others.

Tool 4 — Condition report template

Work: [artist, title, date, medium, dimensions] Examined by: [name, credential] Date: ___ Conditions of examination: [natural light / raking light / ultraviolet / infrared / magnification]

Support: [canvas/panel/paper; tension; planar distortion; tears; patches; relining and when] Ground and paint layer: [cleavage; cupping; craquelure; losses, mapped] Surface: [varnish; bloom; grime; abrasion] Restoration observed: [location, extent, and apparent age, mapped and photographed] Frame: [condition; original?] Verso: [labels, stamps, inscriptions, stretcher marks — photographed and transcribed] Overall assessment: ___ Recommendations: ___ Photographs attached: [overall, verso, details, ultraviolet]

Tool 5 — Pre-auction question letter

To: [Specialist], [Auction House] Re: Lot ___, Sale ___, [date]

Before deciding whether to bid, I request written answers to the following:

1. The complete provenance with names and dates, including any owner listed anonymously in the catalogue, to the extent you may disclose it.
2. Whether the Work or its provenance has any connection to Europe between 1933 and 1945, and what research the house has conducted.
3. The extent and location of restoration, and whether ultraviolet or other technical examination has been performed; please provide any report.
4. Whether the Work has been offered previously at auction or privately, when, and with what result.
5. Whether the house, any affiliate, or any third party has a financial interest in the Lot, including a guarantee or irrevocable bid.
6. Whether the Work is subject to any claim, lien, or restriction, or to any import restriction or export requirement.
7. The exact scope and duration of the authenticity warranty as applied to this Lot's heading, and whether it is assignable.

I would also like to arrange an in-person inspection on [date].

Tool 6 — Consignment agreement terms

1. Consignment, not sale. Consignor delivers the works listed on Schedule A (with images) to Gallery on consignment. Title remains in Consignor at all times. 2. Trust. Gallery holds the works, and all proceeds from their sale, in trust for Consignor. Gallery shall not commingle proceeds with its own funds and shall not pledge, encumber, or use the works as collateral. (Cite the state artist-dealer consignment statute.) 3. Term. ___ months, renewable in writing. Either party may terminate on ___ days' notice, whereupon Gallery shall return all unsold works at Gallery's expense within ___ days. 4. Prices. Minimum price for each work is set on Schedule A. Gallery may discount up to % without further approval; greater discounts require Consignor's written consent. 5. Commission. % of the actual sale price. 6. Payment. Gallery shall pay Consignor within ** days** of Gallery's receipt of payment, with a written accounting identifying the work, the buyer's name [or a reference], the price, and the deductions. 7. Insurance. Gallery shall insure the works at **% of the minimum price** against all risks, from delivery through return, and shall provide a certificate naming Consignor as loss payee. 8. Risk of loss. Gallery bears the risk of loss or damage from delivery until return, including transit. 9. Records and inspection. Gallery shall maintain records of each work's location and shall permit Consignor to inspect the works and the records on reasonable notice. 10. Reproduction. Consignor grants Gallery a non-exclusive license to reproduce images of the works solely for promotion during the term. No other rights are granted. 11. No further consignment. Gallery shall not consign, lend, or place the works with any third party without Consignor's written consent. 12. Return condition. Works shall be returned in the condition received, ordinary and reasonable exhibition wear excepted.

Also keep: a dated inventory with images and signed delivery receipts for every work.

Tool 7 — Gallery insolvency demand

To: [Receiver / Trustee / Assignee], Re: [Gallery] — Demand for return of consigned works

The works listed on the attached Schedule are the property of [artist/owner] and were delivered to [Gallery] on consignment, as evidenced by the consignment agreement dated ___ (attached), the inventory (attached, with images), and the signed delivery receipts (attached).

Under [state artist-dealer consignment statute], consigned works and the proceeds of their sale are held in trust and are not property of the gallery and not subject to the claims of its creditors. The statute may not be waived.

Demand is made for immediate return of the works, and for an accounting and turnover of proceeds of any works sold, which are likewise held in trust. Please confirm within [7] days that the works have been segregated and will not be sold or transferred.

This demand is without prejudice to any claim, and [artist/owner] is separately filing a protective claim in the proceeding.

Tool 8 — Commission agreement clauses (artist and client)

Scope and approval. The Work is described in Exhibit A. Client shall approve the design at [stages]; approval shall not be unreasonably withheld and shall be deemed given if not refused in writing within ___ days.

Copyright. Artist retains all copyright in the Work. Client receives a non-exclusive license to photograph and reproduce images of the Work [for what purposes, for how long].

Attribution. The Work shall be credited to Artist as "[exact credit]" on a plaque adjacent to the Work and in materials describing the building.

Integrity and relocation. Client shall not intentionally distort, mutilate, or modify the Work. Client may relocate the Work within the property upon ___ days' written notice to Artist and consultation regarding siting and lighting.

Removability. The parties agree the Work [can / cannot] be removed from the building without destruction, distortion, mutilation, or other modification. (This determination drives everything below.)

[Where the Work cannot be removed without destruction — for the client:] Artist consents, pursuant to 17 U.S.C. § 113(d)(1), to the installation of the Work in the building and acknowledges that removal may cause its destruction, distortion, mutilation, or modification. (This is the consent that must be signed before installation; without it the client is exposed.)

[For the artist — a limited alternative:] Artist consents to installation, provided that before any removal, alteration, or demolition Client shall give Artist not less than ___ days' written notice at the address then on file and a reasonable opportunity to document, and where feasible remove, the Work at [whose] expense.

Maintenance and conservation. Client shall maintain the Work in accordance with Artist's written instructions (Exhibit B) and shall not undertake conservation without written notice to Artist and a reasonable opportunity to comment or perform the work.

Transfer. Client shall give written notice of these obligations to any transferee of the building and shall obtain the transferee's written assumption.

Waiver. Any waiver by Artist of rights under 17 U.S.C. § 106A is effective only if in a writing signed by Artist that specifically identifies the Work and the uses to which the waiver applies.

Tool 9 — Artist notification letter (building-incorporated work)

VIA CERTIFIED MAIL AND EMAIL To: [Artist], [last known address], and [any known representative, gallery, or foundation] Re: [Work], installed at [address] — Notice under 17 U.S.C. § 113(d)(2)

[Owner] is the owner of the building at [address], in which your work [title, date, medium, location within the building] is installed. [Owner] intends to [renovate / demolish / alter] the premises, and the Work [can be removed without destruction, distortion, mutilation, or other modification / is proposed to be removed].

This letter constitutes notice under 17 U.S.C. § 113(d)(2). You have ninety (90) days from receipt of this notice to remove the Work at your expense or to pay for its removal. If you remove the Work, title to that copy shall be deemed to pass to you.

Please contact [name, phone, email] within that period to arrange access and scheduling. Work in the affected area is scheduled to begin on [date, not less than 90 days from receipt].

[Record of diligent good faith attempt to locate — attach:] searches of [artist registries, gallery records, foundation, professional associations, public records, internet searches], with dates and results; correspondence attempted; and any prior contact information on file.

The documented search is as important as the letter. Keep it.

Tool 10 — Loan agreement terms

Works: Schedule A, with images, dimensions, and agreed condition reports attached. Period: ___ to , including any tour venues listed. Insurance: Borrower shall insure nail to nail on an agreed value basis of $ per work, all risks, with a certificate naming Lender as loss payee. [Or: government indemnity applies, and Borrower shall provide the determination.] Risk of loss: Borrower bears risk from the moment the Work leaves Lender's premises until its return. Packing and shipping: by [named fine art shipper]; custom crating; climate-controlled transport; [courier accompanies]. Environment: light not exceeding ___ lux; temperature ___ ± ___; relative humidity ___ ± ; continuous monitoring with records provided. Security: [requirements]. Photography and reproduction: Borrower may reproduce images solely for [exhibition catalogue, education, and press] during the loan period; no other use; no third-party licensing. Copyright is not transferred. Credit line: exactly as follows: "". Conservation: none without Lender's prior written consent, except emergency stabilization, of which Lender shall be notified immediately. Damage: immediate written notice with photographs; Lender may inspect. Return: by [date] to [address], with a condition report signed by both parties on return. Immunity from seizure: [for international loans, confirm the determination is in place before shipment].

Tool 11 — Demand letter (recovering a stolen or looted work)

VIA CERTIFIED MAIL To: [Current possessor] Re: [Work], [artist, title, date, medium, dimensions] — Demand for return

[Claimant] is the rightful owner of the above Work. The Work was [stolen from ___ on ___ / taken from ___ in ___ under circumstances of persecution constituting a forced sale], as established by the enclosed [police report, family records, restitution filings, archival documents, photographs of the Work in the family's possession].

A thief conveys no title, and no subsequent transferee — however innocent — acquired title. [Claimant] has never conveyed, abandoned, or relinquished ownership.

Diligence. [Claimant] has continuously sought the Work, as shown by [the theft report of ___; registrations with ___ on ___; inquiries to ___; database searches on ___].

Demand. [Claimant] demands return of the Work within [30] days. Please confirm in writing that the Work will not be sold, transferred, encumbered, moved from this jurisdiction, or altered pending resolution.

[Claimant] is willing to discuss a resolution, including [return, a negotiated purchase, or a shared arrangement], and requests that you provide the complete documentation of your acquisition and provenance.

Tool 12 — Response to a restitution claim

To: [Claimant's counsel] Re: [Work] — Response to demand of [date]

[Possessor] takes this claim seriously and is prepared to engage constructively. Before responding substantively, [Possessor] requests:

1. Documentation of the claimant's ownership and of the circumstances of loss;
2. Documentation of the claimant's standing as heir or successor;
3. The provenance as claimant understands it, with sources;
4. A description of the efforts made to locate the Work since the loss, with dates;
5. Any prior claim, restitution proceeding, or settlement concerning this Work, and its outcome.

[Possessor] will provide its own acquisition documentation, including [invoice, provenance received, diligence performed, database searches, exhibition and publication history].

[Possessor] proposes that the parties exchange documentation and meet, with a standstill on limitations and laches for [period] while they do so. [Possessor] does not waive and expressly preserves all defenses, including limitations, laches, and title.

Tool 13 — Forgery rescission demand

Re: [Work], purchased [date] for $___, invoice no. ___

The Work is not by [artist] as warranted. Enclosed are: (1) the report of [expert], dated ___; (2) the technical analysis of [laboratory], dated ___, identifying [pigment/material] not available before [date]; and (3) [additional opinions as the warranty requires].

[Under § ___ of the bill of sale / under the authenticity warranty in the Conditions of Sale], Buyer hereby rescinds the purchase and demands refund of the purchase price of $___, together with [buyer's premium, taxes, examination and analysis costs, transport, and insurance], against return of the Work in its present condition.

The Work has not been altered, cleaned, or restored since purchase and is available for your inspection at [location].

Please respond within [30] days. Buyer reserves all rights and remedies, including for [fraud, negligent misrepresentation, and rescission for mutual mistake].

Tool 14 — Estate art inventory

For each item, also record: photographs (front, back, details, signature) · frame · any exhibition history · any conservation history · insurance schedule entry · whether provenance research has been completed.

Executor's sequence: secure and insure → photograph and inventory → qualified appraisals → provenance research before any sale → liquidity plan for tax → confirm institutional gifts are wanted → address heirs' differing intentions before engaging the market.

Tool 15 — Dealer and adviser conflict disclosure

Before proceeding, please confirm in writing:

1. Are you the owner of this Work, or are you acting as agent for the owner?
2. If as agent, do you have authority to sell at the stated price, and will you disclose your principal?
3. Are you receiving any compensation in connection with this transaction from any person other than me — including a commission, a finder's fee, a rebate, or a share of the sale price?
4. Do you or any affiliate hold any interest in the Work, or any financing or guarantee arrangement relating to it?
5. Have you previously offered this Work, and to whom, at what price, and with what result?

[For an adviser engagement letter:] Adviser shall be compensated solely by Client at [rate/flat fee] and shall not accept any compensation, discount, rebate, or other benefit from any seller, dealer, or auction house in connection with any transaction for Client, without Client's prior written consent.

Tool 16 — Deaccession memorandum

Work: ___ Accession no.: ___ Acquired: ___ Source: [purchase / gift / bequest] 1. Restrictions. [Review the deed of gift, bequest, or purchase agreement for any restriction on sale, display, or transfer. Quote it.] 2. Rationale. [Consistency with the collections policy: outside the scope of the collection; duplicative; condition; inability to care for it; authenticity or attribution change; provenance concerns.] 3. Professional standards. [Compliance with the institution's collections management policy and applicable professional standards, including on the use of proceeds.] 4. Legal review. [Charitable trust considerations; whether attorney general notice or a court proceeding is required to modify a donor restriction; whether the donor or heirs should be notified.] 5. Provenance. [Confirm clear title and the absence of any pending or foreseeable claim before offering the Work.] 6. Method of disposal. [Public auction, private sale, transfer to another institution, exchange — and the reasons.] 7. Use of proceeds. [As the policy requires.] 8. Approvals. [Curator, director, collections committee, board — with dates.]

Related documents

• Art Law and Cultural Property
• Buying, Selling, and Protecting Art
• Art Transaction and Provenance Checklist
• Contract Lifecycle Toolkit
• Estate Administration Toolkit
• Tribal Law Toolkit

Templates are starting points, not filings. Art law combines state, federal, and international sources; consignment statutes and moral rights provisions vary in detail. Consult counsel before sending or signing.