The role of an agent tends to depend on the artist's stage of career, reputation and status. A good agent can be a key factor in assisting in the achievement of creative and commercial goals by providing knowledgeable and constructive encouragement, criticism and those all essential contacts. Agents can also seek and secure work (commissions, gigs, film parts, etc); and arrange for the necessary contracts to be drawn up (publishing agreements, sale of artwork contracts, etc).

What is agency?

Agency is a contractual relationship between the person legally known as "the principal" such as an artist, writer, or actor and the agent. The principal gives the agent authority to enter into agreements on their behalf. This gives rise to a legally recognised special relationship (fiduciary relationship) which imposes a high level of trust and responsibility on the agent.
An agency can be for one specific transaction, such as negotiating the commissioning of a new artwork with a particular buyer, or for more general ongoing purposes, such as an authority given on a continuing basis to manage the creator’s business affairs.

How is agency created?

Agency is created by written or oral agreement, and can also be implied by the conduct of the parties - both the agent and the principal. Where there is no written agreement, the law will look at the actions of the parties to objectively determine if agency exists - ie have you have acted in a way which reasonably implies your intention to have someone act as your agent. For example, entrusting a gallery with the sale of your works over an extended period of time could be seen as an agency rather than a consignment arrangement.
Where an artist holds out that a certain person is their agent when they’re not, the artist may be prevented (estopped) from claiming that person was not their agent, and be bound to whatever was agreed.

How is authority granted to an agent?

When you have made the decision to engage an agent it is important to consider what exactly you want them to do.

Remember that your agent only has the power to negotiate and enter into agreements on your behalf to the extent to which they are authorised. A musician, for example, could limit the authority of their agent to getting gigs, or to also to organise marketing or promotion. The principal may also retain the final right of approval so that they are informed of any deals being arranged by the agent before a binding commitment is made.

The agent’s authority can be specifically created and limited by the terms of an agreement. For example, a writer may give express written instructions for their agent to negotiate with a potential publisher for the writing of a new novel.
The agent may also have a further implied authority, which fleshes out the rights granted in writing. For example, by giving your agent the power to book interviews, it may be reasonably implied that they can make a commitment for you to turn up at a particular time and date. However, if there is any evidence that you have not consented to this, then the authority can not be implied.

The really sticky area is where agents act with apparent (ostensible) authority. This is where an agent purports to be acting within the scope of their actual authority granted by you, but is in fact acting outside of it (or is no longer your agent at all). In this situation, you may not be able to get out of an agreement made with third parties.
Any third party that enters into an agreement with the agent, reasonably thinking that the agent has your authority to make the agreement, can rely and enforce that agreement. For example, you may find yourself bound to paint a commissioned work for an organisation you despise because your agent signed you up for it.

What does your agent have to do for you?

The main obligation your agent has is to act in your best interests. The relationship between principal and agent is one of trust. There are a number of other fiduciary duties to which agents are committed, such as the duty to act honestly. These duties are separate to the contract but form part of the agency relationship.

Duty to fulfil agency

An agent has to carry out your instructions. If an agent goes beyond or contrary to what is instructed, and then causes you loss, they are normally liable to cover that loss.

Duty to act in person

Unless otherwise agreed, or in an emergency situation an agent must perform the agency in person, and not delegate their work to someone else.

Duty of care

Under both contract law and the law of negligence, an agent is required to exercise due care and skill in the performance of their obligations.

Duty to promote the principal’s interests

The agent is not permitted to further their own interests, or those of any other person, in conflict with your interests. An agent therefore has to avoid any conflicts of interest, and fully disclose any conflicts to the principal.

Confidentiality

Your agent must keep information provided by you in confidence completely confidential. Even after the end of the agency relationship, an agent is not permitted to use any confidential information acquired in the course of the agency in competition with you, or to your detriment.

Proper management of the money

The agent is required to keep any money handled on your behalf completely separate from any other monies. An agent must also be able to accurately account for monies or property held on your behalf.
Duty not to profit secretly from the agency
For example, an agent isn't allowed to make their own, undisclosed commission for sealing a deal.

The agency agreement

It is important that the agency agreement details the rights and obligations of each party and bothat both parties have the agreement in writing.

Term

The contract should set out the term of agreement (including options to renew).

Territory

Is the agency going to be exclusive or non-exclusive? Which territories can the agent act for you? For example, a gallery may require that an artist only exhibits and sells work through them within a particular country. For this type of exclusive agency, it would be prudent to consider how long the agreement should last, and how and when the agency relationship will end.

Commission

Agents are usually paid by commission based on the gross income received on behalf of the principal. The agreement should provide specific details of how the commission is to be calculated and the timing and method of payment.

Accounting requirements

The agent should keep good accounts which properly document the income and expenses associated with the agency. The principal should be given reasonable access to those accounts.

Insurance

For example, visual artists entering a gallery agency agreement should consider the issue of insurance, in the event that works are damaged or destroyed.

Termination

The contract should set out the circumstances by which you or the agent are able to terminate the contract.