The Art of Contract: Why Bespoke Website Terms of Use Matter for Artists and Galleries
In this series of contract-themed articles, Director and Founder of Guest Work Agency, Alana Kushnir, shares useful tips on the types of contracts which regularly arise in the art industry. From artist and brand collaborations to public art commissions, here are some suggestions for you to consider before signing on the dotted line.
For this story I want to dive into one of the most overlooked aspects of building an artist or gallery website: the terms of use. It’s tempting to take shortcuts and “borrow” your website terms of use from other websites that look similar to yours. After all, why spend money on bespoke terms when you can just copy and paste? You may think that you are saving on time and costs, but you are also losing the opportunity to protect your practice –and therefore save time and costs –in the long-run. Here’s some reasons why you need to have a lawyer draft website terms that are tailored to your specific needs.
1.Consider your Website Terms of Use as your Contract with your Users
At its core, a website’s terms of use are more than just legal jargon—they are your contract with the users who visit your site. These terms should clearly outline what visitors can and can’t do on your website. By agreeing to these terms, users acknowledge the rules you've set out. Where a user breaches those rules – for example, by using an image of your artwork from your website elsewhere without your permission - you would have a legal basis on which you could make a claim for breach of contract.
However, if your terms of use aren’t crafted specifically for your website and your artistic practice, you may find it difficult to defend your rights if an infringement occurs. A generic or copied set of terms might not give you the legal leverage you need where a user is doing something that you do not agree with.
2. No Copying—and No Co-Opting for Purposes You Don’t Agree With
One of the most important clauses to include in your website terms of use is a prohibition on copying works of art depicted on your website. It's a must. This ensures that visitors to your site understand they cannot reproduce your artwork, images, or any content without your explicit permission.
But it’s not just about copying. Consider the myriads of other ways in which yourwork might be misused. For instance, you might not want your artwork co-opted for commercial purposes or used in ways that don’t align with your values or vision. Including a clear restriction on the types of uses you don’t consent to can ensure your artistic integrityis preserved while putting yourself out there online.
3. Say No to Data Bots
If you're worried about images of artworks on your website being scraped for training AI models, your terms of use can help address this. While the legal landscape around “scraping” is still evolving, and does vary somewhat from jurisdiction to jurisdiction, you can include a clause that explicitly denies consent for data scraping.
Even if as in Australia, there isn’t a clear-cut legal precedent for this issue yet, proactively addressing it in your terms signals that you take control over your content and aren’t willing to let third parties use your creative output without your permission.
4. Update Your Terms as You Grow
Website terms are not a "set it and forget it" part of your site. As your practice or gallery business evolves—whether that means adding a new artwork, artist, launching an online shop, or introducing new features—you should revisit your terms to reflect these changes.
Failing to update your terms can leave gaps in your legal protections or create confusion for your users. Make it a habit to review your terms periodically, especially when making major changes to your website or your practice model.
5. Selling Artwork? Make Sure Your Terms Cover Sales and Shipping
If you're selling artwork or other products directly on your website, your terms of use must address not only the sales process, but also your shipping and return policies. Setting clear expectations around timelines (i.e. when a purchaser can expect their items), returns, and refunds will help ensure manage the purchaser’s expectations and avoid confusion. Remember, if you're operating in Australia, consumer laws require that you provide refunds or exchanges in certain circumstances—such as when an item is faulty or not ‘fit for purpose’. You should make sure that your website terms of use comply with these laws, to protect yourself and your customers.
Ready to Protect Your Work?
If you're ready to take your website terms of use seriously, don't just rely on a generic template or do a copy and paste job from a similar-looking site. You should take the time to create bespoke terms that reflect your practice, protect your rights, and set clear expectations for your users.
Need help crafting terms that work for you? Check out our Contract Builder for Website Store Terms, an affordable and customisable solution for artists and galleries selling unique artworks, prints and related products online.
The contents of this article are of a general nature only. They are not and should not be used as legal advice.