Two years in the making, Christchurch Art Gallery’s new loan agreement was introduced at the Australasian Registrars Committee conference, Sign & Return: Informing Collection Documentation, in Melbourne, February 2012.
Registration documentation, such as loan agreements used when the Gallery borrows works from other galleries, museums or private lenders, requires regular review in response to changes to legislation, insurance and an organisation’s processes and procedures. Borrowing and lending can carry enormous liability for all parties, and it’s important that each transaction is supported by a robust contract.
In 2008, a decision was made to review all registration documentation with the objective of developing articulate and legally sound agreements. The Gallery, with the assistance of National Services Te Paerangi, contracted Shane Simpson, a Sydney-based lawyer and advisor to a number of Australian museums and galleries, to assist with the task at hand.
The review team extended beyond the registration department to include management, conservators, curators and technicians, all of whom would be affected by the changes to the loan agreement. After all, a broad range of staff play a part in the life cycle of a loan, and a collaborative approach ensured the new document was comprehensive in its considerations. Our old documents were scrapped and new terms and conditions were drafted, so from time to time we needed to pause and reconsider the processes and procedures articulated in the agreement and the impact these changes would have on loan administration and day to day business.
The new loan agreement is testament to an inclusive review process, involving a broad cross-section of staff and a specialist lawyer. Each and every thoughtfully drafted clause is worthy of its very own blog, but with word limits to consider, I’m going to play favourites and select a few highlights…
In hindsight, one important clause missing from the old loan agreement was a disputes resolution clause. While we take preventative measures to mitigate risk, accidents can and do happen. If not well managed, disputes can result in bad press, long-drawn-out negotiations and costly legal bills. The disputes resolution clause sets clear boundaries, and is an agreement between all parties as to how matters will proceed if the Gallery and lender find themselves unable to resolve problems that may arise. Legal intervention is the last option.
At the end of the agreement, in what we refer to as the ‘boiler plate’ clauses, the applicable law is noted and we go one step further to agree in what country action, be it mediation or court proceedings, will take place (in this case, Christchurch, NZ). Transparency is key and when a dispute occurs, the worst thing an organisation can do is waste time determining how to manage the crisis. Resolution clauses offer a framework for response, which is agreed to by both parties, in advance of a dispute arising. So simple, but essential.
Another one of my favourite clauses is the reproduction and communication clause.
Requests for clearance have increased thanks to website initiatives, Facebook, blogging, Tweeting and advance marketing and media campaigns. Therefore, we sought a comprehensive clause that would cut back on the time it takes to administer copyright, and secure wider use.
It works like this:
If the lender is the copyright holder, then it makes sense to clear the copyright in the loan agreement as this saves chasing clearance at a later date. If the lender is not the copyright holder, we make clear our intentions to reproduce the works, subject to the copyright holder’s consent (if any), and they are asked to agree to these conditions.
Past copyright clauses were quite restrictive so we have been bold and asked for as much clearance as possible, including allowance for cropping and overprinting.
And while we have a no photography policy in the galleries, we note that in the age of mobile phone cameras, we can’t stop visitors taking photographs, and we will not be liable for unauthorised photography by our visitors.
In light of the recent Canterbury earthquakes, the Force Majeure clause was another good addition to the agreement. This clause defines what constitutes a Force Majeure event, and acknowledges that the Gallery or a lender may not be able to meet their contractual obligations under such circumstances. For example, in September 2010, State Highway 1 was closed due to a landslip, meaning trucking companies could not source vehicles and staff, and in February 2011, the Gallery found itself sealed within the red-zone cordon. This clause acknowledges the limitations placed on all parties, at such times.
In summary, our new documents are in good shape. I won’t say “perfect”, because there is always room for improvement, and that is what this review revealed.