Art moving online and legal ramifications

The international art world has moved online exponentially in light of the world’s response to COVID-19. Auction houses, art dealers and artists have taken to displaying artwork online in order to exhibit it, to attract buyers and to continue to make sales. There is no certainty as to whether this will be a temporary shift or if it will become a more permanent pattern.

Many sellers are now being forced to sell their artwork online given the continuing restrictions on travel (both locally and internationally) as well as social distancing rules which are very likely to be in place for the foreseeable future. Therefore, sellers should ensure their terms and conditions are adapted to allow for such online sales.

We have updated many clients’ terms and conditions – not just in the art world – to enable them to operate in today’s new environment. The below list illustrates a few examples of issues which art sellers (and sellers of any kind of products!) ought to consider:

Consumer Rights Act 2015 (‘Act’)

If a seller has not sold online previously, they will need to ensure that their terms and conditions of sale are compliant with the Act . A seller should be aware of the various rights afforded to buyers under the Act, which includes (and is not limited to) a buyer’s right to change their mind and to cancel the contract on receipt of the artwork within 14 days.

Collection & Delivery

Social distancing measures are likely to be in place for a while, and when restrictions are eased, buyers should be able to collect the items of artwork that they have purchased. It will be key when this happens for all parties to ensure that social distancing rules are adhered to. If such collections are not possible, the parties will need to agree terms/fees regarding the storage of and insuring of the artwork.

Given that delivery companies are currently overwhelmed, it would be prudent for sellers to make it clear to prospective buyers that deliveries may take longer than usual. Under the Act, if no time frame for delivery is agreed a seller must make delivery within 30 days.

Seller should also consider and make clear in their terms and conditions which party will be responsible for import duties and other related costs.

Condition Reports

Given that a buyer will be purchasing online and remotely, a buyer will be unable to inspect the artwork prior to purchase. Sellers should ensure that accurate and detailed condition reports are completed and provided to buyers prior to purchase. A buyer is likely to be heavily reliant on such documentation and will rely on representations made by the seller. It is important that such representations are accurate to avoid the artwork being returned in the event that the seller’s representations prove to be inaccurate.

The above is a brief summary and not exhaustive. There are many other issues entities and individuals ought to consider when updating their contractual agreements.

This article was written by Razwana Akram and Annika Chauhan.

Should you have any further queries please contact Razwana Akram.

SMAB remains fully operational and is here to deal with any and all commercial and transactional queries that you may have during this exceptional time. Please do not hesitate to get in touch – we are able to offer all of our services remotely and we have secure video conferencing facilities. Rest assured that we can deal with your legal issues seamlessly and confidentially, without you having to leave your home.