Originally published in Hunters. See original version here.
Considerations of lending art
Owners and trustees of significant art collections may find that lending artworks to institutions for exhibition is an attractive way of building and bettering the reputation of their collection.
Building a rich exhibition history may enhance an artwork’s monetary value and prestige. A well-placed loan can give an artwork from a private collection a new lease of life as it may be seen by a much larger public audience, perhaps even for the first time, as well as experts and scholars. The study and scholarship that goes into creating an exhibition may result in new attributions and sometimes significant discoveries about an artist or an artwork.
On a practical level, lending artworks can free up space on overloaded walls or in storage racks and provide funds for building and preserving collections. The lender may receive a lending fee and there will also almost certainly be a costs savings while the work is on loan as, during that period, the borrower should be responsible for the cost of insuring, transporting and conserving the work.
Risks and ways to mitigate them
For all the benefits of lending, there are also significant risks, and these must be considered and mitigated as effectively as possible. If the lender is a trustee, it is important to ensure that the proposed loan is permissible under the terms of the trust instrument, and for the trustees to take into account the other trust terms and their general fiduciary duties in deciding whether to loan an artwork, and in weighing the risks against the benefits of doing so. Any conditions in relation to the loan should be clearly and comprehensively set out in a loan agreement between the lender and the borrower.
Artworks are by their nature unique and irreplaceable. If potential damage to or loss of an artwork would have a profound impact on the integrity of a collection, then a decision to lend the artwork should be made with caution. If the artwork is very fragile, it may be impossible to ensure its stability while going out on loan. The risk of damage or loss can be minimised by lending to a reputable borrower, insisting on high levels of security and using the lender’s approved courier to travel with the artwork to and from the exhibition location, but it cannot altogether be avoided.
What follows are four key considerations that should be addressed and documented prior to lending:
Full and comprehensive insurance is vital when lending an artwork. The insurance cover must be ‘nail to nail’ (covering the object from the moment it is taken off the wall at the lender’s premises to the moment it is returned there) and fully comprehensive. If lending to a public institution in the UK, it is likely that the borrower will have applied for insurance under the Government Indemnity Scheme (“GIS”), in which case particular terms apply and must be included in the loan documentation.
Conservation, display and security
Before the artwork goes out on loan, its condition and suitability for lending should be assessed by a conservator. This is generally at the borrower’s expense although the lender may wish to use its own approved conservator. Assuming that the artwork is able to travel, its condition should be re-assessed by the same conservator at various stages of the loan term, including on arrival at and departure from the exhibition location.
A loan agreement should specify the environmental and display conditions that are required, including whether the artwork needs to be in a display case or behind a barrier and what temperature, lighting and humidity levels are necessary to keep the artwork’s condition stable. The agreement should also specify how the artwork is going to be transported and by whom and any security conditions, such as whether a guard must be present at all times in the exhibition room or whether electronic alarms offer sufficient protection.
Copyright and credits
An issue that is sometimes overlooked is the borrower’s right to reproduce and publish photographs of the artwork. The artwork may or may not be protected by copyright, but photographs of the work will almost certainly attract copyright protection and the lender will want to ensure that the borrower assigns the copyright in any photographs to the lender. Alternatively, the lender may prohibit the borrower from taking any photographs and restrict them to using the lender’s own photographs in publications, publicity and educational material. This should be dealt with expressly in a loan agreement. The lender should also specify the credit line to be used in all publications of the artwork and on the exhibition label.
Lending internationally brings with it additional considerations such as complying with any customs formalities to allow the artwork to travel. Generally, the borrower should be responsible for arranging and paying the cost of obtaining an export licence.
Depending on the history and provenance of the artwork and the country in which it will be exhibited, the lender may wish to require the borrower to obtain immunity from seizure for the artwork. While the scope of immunity varies from country to country, in general terms this means that, should a third party (individual or state) claim to be its rightful owner while it is being exhibited in a foreign country, the artwork cannot be seized by an order from the foreign court. Immunity from seizure can be essential when dealing with artworks that have a gap in their provenance and may have been lost, stolen or confiscated at some point in their history or otherwise separated from their original owner or country of origin.
Authority to bind
To ensure that a loan agreement is binding and enforceable, the lender should seek confirmation early on that the person who intends to sign on behalf of the borrower has authority to do so. When dealing with state or foreign entities, in particular, it may be necessary to establish how a person derives authority to bind the borrowing institution.
While certain risks associated with lending can never be eliminated, with forethought, expert advice and thorough loan documentation, those responsible for the care of a collection can feel reassured while sending artworks on loan.
Petra Warrington, Senior Associate