When, in February, Stephen Friedman Gallery introduced it was getting into administration, it was Groundhog Day once more within the London artwork world, as simply the most recent in a sequence of gallery insolvencies over the previous decade, together with Blain Southern in 2019, Simon Lee Gallery in 2023 and Arusha Gallery in 2025. I’ve written beforehand right here about how poorly protected artists are within the UK when their galleries go bust, with the artists compelled to affix the hopeless queue together with (and infrequently behind) collectors similar to banks and the tax authorities when there may be little or nothing left to go round.
On that challenge, the issues have a minimum of grow to be moderately well-known and understood, even when the answer stays elusive. One other problem that has obtained much less of an airing is what to do when third-party storage suppliers engaged by the now-defunct gallery haven’t been paid and refuse to launch works to artists till the arrears are cleared.
The truth that that is doable in circumstances by which there isn’t any doubt that the artworks in query stay the artist’s property, and by which the debt to the storage supplier was incurred by the gallery and never the artist, appears counter-intuitive to many who encounter it for the primary time.
Creditor earlier than creator
In an English regulation context, the reason is often as follows. Someplace within the storage supplier’s phrases and circumstances the gallery may have agreed, with out their artists’ data, that the storage supplier holds the works topic to a lien for all prices because of the supplier. A “lien”, a hangover from when the English authorized system was carried out in Norman French, is a type of safety curiosity that provides a possessor a passive proper to retain (however not promote) property till the debt or different obligation is discharged.
At this level there may be little to be gained from a declare by the artist in opposition to the gallery for this act when there’s already no cash left even for the proceeds of gross sales to be paid out. So, the main target turns to the query of whether or not the storage supplier is entitled to depend on its lien in response to any motion by the artist for restoration of what’s undisputedly their property, when (1) there isn’t any debt due from the artist to the supplier; and (2) the artist had no thought their gallery had agreed to the lien, a lot much less given their categorical consent to it. In these circumstances, would a refusal by a storage supplier to launch an artist’s works to them until the arrears are paid quantity to a wrongful interference with the artist’s title to the works?
Much less reliance on galleries for storage
I’m sorry to say that it’s a gray space. When an artist consigns work to a gallery the authorized impact is that they appoint that gallery as their agent. The storage suppliers say that they’re entitled to depend on the “obvious” or “ostensible” authority the gallery has to bind its principal, the artist, particularly when the gallery has agreed to a particular time period expressly confirming that it has that authority. It isn’t clear what a courtroom would determine, and naturally each case will activate its particular information. Within the meantime, this is among the types of issues individuals take into consideration once they say that “possession is 9 tenths of the regulation”, as it might sometimes price an artist extra in authorized charges than the arrears being demanded to press the purpose and discover out.
What can artists do to guard themselves? A very good begin could be to ask their gallery if it makes use of third-party storage suppliers and if it has agreed to phrases together with a lien. If the reply is ‘sure’, then some pressing consideration could be given to informing the supplier that the gallery didn’t have authority to conform to that time period and/or the artist ought to be notified instantly about any arrears. Maybe extra basically, artists would possibly think about whether or not they need to depend on a gallery to retailer any extra of their work than is critical, given the existential threat to a observe that dropping entry to a complete physique or work represents.
What of the storage suppliers themselves? I’m not with out sympathy, as they’re among the many losers when a gallery goes beneath, however they need to think twice about how they deal with artists who’re already at a really low level professionally and financially because of their gallery crashing out of enterprise.
• Jon Sharples is an mental property and artwork lawyer at Howard Kennedy
