It is not uncommon for museums (or other artistic, non-profit and philanthropic organizations) to organize art exhibits which include works of art (e.g., paintings, sculptures, etc.) that are not owned by the museum itself. In such cases, the museum curator must borrow the desired works from their owners (i.e., the artist themselves, other museums, corporations or private collectors). In drafting a Loan Agreement between the exhibiting museums and owners to accomplish the foregoing, here are some general considerations:
- The agreement should clearly specify the work(s) being borrowed by the museum, the loan period and the exact dates, times and places (i.e., one or more participating venues) the artwork may be exhibited.
- The museum should reserve the right to include or not include specific works in one or more special exhibits. That is, the curator may want to maintain artistic control as to including or withdrawing one or more of the borrowed works from the exhibit at any time and in their sole discretion.
- The agreement should specify in whose possession the borrowed works will remain during the duration of the loan period (i.e., the museum or one or more participating venues for a touring exhibit) and specify the logistics for the drop-off and pick-up of the borrowed works (including responsibility for the costs of such transportation and storage if pick-up times are missed).
- The agreement should specify any indoor/outdoor exhibit conditions and requirements for the preservation of the borrowed works (e.g., limits or ranges of temperature, sunlight exposure, moisture, etc.).
- The lending party should warrant that they have has full legal title and copyrights to the works being borrowed by the museum, and agree to indemnify the museum (and any participating venues) against any liability arising out of claims by persons claiming title or copyright to any of the works.
- The agreement should specify who is responsible party (and in what amounts) for insuring the works against risks of physical loss or damage during the loan period.
- The agreement should include a limited license for the museum and any participating venues to photograph and reproduce, display and transmit images of the works in connection with publicity of the exhibition and the right to use any contributing artist’s name, biographical information, likeness and credit line information in connection with such publicity.
- The agreement should specify any monetary (or other) consideration being paid to the works’ owners for making the loan. And, if the exhibition contemplates accepting offers for the sale of the borrowed works, the agreement should also specify sale prices and any commission arrangements.
- The agreement should specify that the museum and any participating venues may apply conservation measures without the owner’s permission if immediate action is required to protect the works and how the costs of such conservation measures shall be shared and/or insured.
