Consignment, Control, and the Myth of the Neutral Gallery
The Game Artists and Galleries Play
White Walls and Quiet Power
Art Galleries are fascinating spaces. These small storefronts are usually stark white and usually overlit. A welcome desk (poorly named) might have a sign-in log or a tear sheet for the art, but it definitely has a couple of gallery assistants who will ignore you. The psychological dynamics are something to behold.
Some of the smaller or entrepreneurial galleries might have someone who will actually greet you, especially during an opening, and tell you a little about the artist whose works are on display. Larger galleries display works by several artists and likely have private viewing rooms for serious collectors. One thing you won’t find easily is a price tag. Prices are available upon request or can possibly (POSSIBLY) be found on a sheet at the desk. Each gallery visit is like a little adventure. Will someone greet me? Will there be any information about the art or the artist? Do I have any context here at all? Mysteries. You just have to go into a lot of galleries and see what happens. It’s a fun game.
Galleries, like any single-product enterprise, are a tough business. Overhead is enormous. Events and art fairs are expensive and logistically complex, and many galleries feel obligated to participate in these events. Client relations are the obvious song and dance. But artists–ah, the forgotten artists–often seem to be treated as little more than production machines.
The first time that I heard that the artist only makes 50% on average (if they’re lucky) of the sale of a work, I was shocked. Then I did a classroom business exercise to calculate the costs of running a gallery, and it made more sense. Prime locations in major cities mean high rent. Mandatory art fair participation can mean booth fees as high as $100,000 per fair. Add insurance, security, staff labor, and client entertainment, and you have all the makings of a doomed-to-fail business.
As a classroom exercise, we each had to calculate how many paintings and at what price a gallery would have to sell just to break even. It took a lot of recalculating to sell that art and keep our imaginary gallery afloat. We had to get creative. Some people added ancillary services like design and curation services. Some people added an education space or coffee shop. I subsidized my imaginary gallery from the Fortune 50 company next door. The point is simple: running a gallery costs a lot of money, so of course they take 40-70% commission from the artist.
Consignment Is Not Ownership (Even When it Looks Like it Is)
Let’s talk about the artist. Making art and selling art are two very different things. Very few artists have gallery representation. But some artists are able to sell work at galleries on consignment. When this happens, the artist delivers the piece to the gallery, it’s displayed–sometimes for years–and hopefully sells. The artist is paid sometime after the sale.
Importantly, the gallery does not own the artwork. The gallery exhibits, markets, promotes, and facilitates the sale. Ownership stays with the artist until the work is sold. This is where contracts matter. A good contract covers insurance, transportation, commission, exhibition terms, and risk allocation. Both sides assume some risk, but the baseline assumption is clear: the work remains the artist’s property.
Or so the story goes.
Problems arise when issues aren’t covered in the contract, when someone else negotiates on the artist’s behalf without full transparency, or, worst of all, when there is no contract at all. When something goes wrong, the gallery often has the upper hand.
That brings us to Eve Plumb—yes, Jan from The Brady Bunch. As an adult, Plumb became a painter working in realism. She consigned several paintings to Wynne Fine Art Gallery in Massachusetts. In 2014, the Wynnes filed for bankruptcy, and the bankruptcy trustee attempted to include 85 consigned paintings as part of the liquidation estate.
But consigned artwork belongs to the artist, not the gallery. Plumb sued.
I came across this case while I was researching art law. I’m currently taking a class called Legislation and Regulation, which is where we dive deep into lawmaking and statutory interpretation. Laws are often unclear, and trial outcomes can come down to the placement of a comma or the interpretation of customs and norms. In Plumb v. Casey (Casey was the bankruptcy trustee for the Wynnes), the Supreme Judicial Court of Massachusetts (the highest appellate court in that state) had to evaluate two seemingly conflicting provisions of state law. And yes, Massachusetts does have laws about art consignment. Here is the section in question, and it’s interesting to note the language. The art laws of Massachusetts here need some statutory interpretation.
The Wynnes argued that the artists failed to comply with General Law 104A § 2b, which requires a Written Statement of Delivery (WSOD):
“A consignor who delivers a work of fine art hereunder shall, upon delivery of the work of fine art, furnish to the consignee a separate written statement of delivery of the work of fine art, which shall include at a minimum the following information: (1) the artist’s name and the name of the owner of the work of fine art; (2) the title, if any, of the work of fine art; (3) the medium and dimensions of the work of fine art; (4) the date of completion of the work of fine art; (5) the date of delivery of the work of fine art; and (6) the anticipated fair market value of the work of fine art.”
Plumb and the other artists had not provided WSODs. The gallery believed this failure allowed the artwork to be used to pay bankruptcy creditors.
The Court disagreed.
It looked instead to General Law 104A § 2a, which defines consignment itself:
“Notwithstanding any custom, practice or usage of the trade to the contrary, or any other language herein, whenever a consignor delivers … a work of fine art to a consignee … for the purpose of exhibition or sale, or both, on a commission, fee or other basis of compensation, the delivery to and acceptance of the work of fine art by the consignee shall constitute a consignment, unless the delivery to the consignee is pursuant to an outright sale … .”
In other words: delivery + acceptance + intent to sell = consignment. The “notwithstanding” clause controls. The Court held that §2b’s “shall” was directive, not a condition precedent to ownership protection. The artwork remained the artists’ property.
Plumb and the other artists got their work back.
Document Everything
The takeaway is not glamorous, but it is foundational. Document everything. Keep records that are clear, complete, and easy to retrieve. Use written contracts, even when the relationship feels friendly or informal. Know the statutory requirements in the state or country where you are doing business, because customs and norms will not protect you when something goes wrong.
For artists, this means understanding that consignment is not just a casual arrangement. It is a legal relationship with real consequences. For galleries, this is a reminder that trust is not a substitute for compliance. Clear documentation protects everyone involved and reduces the likelihood that financial distress turns into legal conflict. Good records are not just good business practice. They are risk management.
Ms. Plumb was fortunate. The statute was on her side, and the court read it in a way that honored the purpose of consignment law. Many artists are not so lucky, especially when records are incomplete or nonexistent.