Management Of Creativity 30 Years On

In October 1976 the first issue of Art Monthly carried the first Artlaw column. Have things improved, worsened, or stayed pretty much the same over the last 30 years?

From Jennie Lee's appointment as the first Minister of State for the Arts in 1964, there was always an influential cabinet-ranking champion for the arts. In the mid 70's postwar Keynesian economics still operated to the UK, which helped the Arts Council of Great Britain (ACGB) to secure regular and substantial financial support from successive governments, which it passed on to provide direct financial support for artists and artists' service organisations. This benign political and economic climate in the UK stimulated and supported the establishment of, for example: artists' cheap studio providers such as SPACE (1974) and ACME (1975) in London; independently run, but non-selling, publicly-funded galleries such as the ACME Gallery in Covent Garden and the AIR Gallery in Shaftesbury Avenue (both of which, in turn, directly commissioned the creation of non-selling installation and performance artworks); and the national Art Information Registry (AIR) of unknown artists and their works. Public sector art schools and the handful of university fine art departments in the UK were still able to exercise the long-standing tradition of providing students with regular personal tutoring from regular part-time income stream to support their work. In this era - before the introduction of digital technology, the world wide web, e-commerce and cheap international air travel - the commercial dimension of most artists' practices was necessarily mainly UK-centric.

It was in this environment that the Calouste Gulbenkian Foundation (CBF) commissioned the then Warden of Goldsmiths College, sociologist Richard Hoggart, to conduct a major enquiry into The Economic Situation of the Visual Artist in the UK. Hoggart suggested the conduct of separate related research into the legal needs of artists to the UK. Funded by CBF and ACGB, the Artlaw Research Project (1976-78) found a marked absence of an affordable source of reliable information, knowledge, training or advice and help for visual artists on professional practice issues. It additionally found that art schools generally provided no professional practice education, and also that there were no art lawyers in the UK offering accessible expert advice and help. Again funded by CBF and ACGB, Artlaw Services was formally established in 1978 and provided free information, advice and help. At that time, art market professionals operated on a paperless basis, sealing deals merely with a handshake; the few artists offered a place in a gallery's select stable were paid an annual stipend (recouped from future sales), and sales commission rates were generally below 50%. Stereotypically, artists were in a weak (and usually ignorant) bargaining position; galleries and buyers called the shots.

Copyright law had not been updated since 1956, and was in great need of reform. Commissioners of prints, photographs, and portrait paintings automatically owned copyright. Copyright in published prints and photographs lasted 50 years from publication, and for other artworks for the artist's lifetime plus 50 years after the artist's death. Artists had no statutory moral rights, and no artists resale right

Keynesian economics were replaced by monetarist Thatcherite policies from 1979. This brought about the unkindest cuts in government support for the arts during the next two decades, exacerbated by the world economic recessions of the early 80's and 90's. Artists' service organisations lost most if not all public funding, direct financial support for artists was drastically cut, as was regular part-time tutoring as art school education was caught up in the general commodification of higher education. The increasingly austere economic situation, especially for the arts and the visual arts in particular, led art schools to adjust curricula to recognise the need for self-reliance in professional practice; this in turn encouraged greater engagement with the art market place.

A helpful measure introduced by the Thatcher government was the wholesale reform of UK intellectual property law. The Copyright Designs and Patents Act 1988 radically reformed artists' rights to give them stronger bargaining tools, especially in the nascent information age of the world wide web and digital technology. All governments in developed countries recognised the power and economic importance of the microchip, the decline of manufacturing and industrial bases, the increasing economic importance of creativity and ideas, and the need for creators and innovators to have strong world wide protection of the fruits of their intellectual labours. A11 artists were automatically given by law copyright ownership of their original works - whether commissioned or not - and were given statutory moral rights to protect the integrity of their works and their own professional reputations. Further legislative improvements were made in the 90's, extending copyright to last for 70 years after the author's death, leading to the enactment of the Artist's Resale Right (droit de suite) and outlawing every conceivable (and yet to be conceived) use and abuse of digital technology in the unauthorised copying and merchandising of copyright works.

By the mid 90's the world economy had improved and steadied, especially in the West, and UK's New labour government of 1997 ushered in an era of economic stability and growth, from which the arts in the UK have benefited. New labour's first Minister of State for Culture, Media and Sport Chris Smith, provided evidence to the Cabinet - and the Treasury in particular - that the 'creative industries' (including the arts', for this purpose) made a massive and growing contribution to the national economy. This led directly to the establishment of a Creative Industries unit within the Department of Culture, Media and Sport, and a 'creative economy programme'.

Thirty years on, publicly funded support for the arts and artists is remarkably successful - and is delivered through services that the national economy appears to be able to sustain. In the visual arts, there is, for example: Artquest's online information and help service; Own-It's intellectual property support service; and the National Studios Association of artists' cheap studio providers. In 2005 Arts Council England funded a pilot project providing free online artlaw advice via Artquest, and its evaluation report revealed that the two most prevalent areas of need for help are contracts and intellectual property rights. But significant changes are discernible, compared with the 1976/78 Artlaw Research Project. Artists are now much more aware of the commercial dimension of their practice, and of the need to conduct business professionally, art market professionals, as well as artists, are much more aware that artiste have strong legal rights - especially copyright and statutory moral rights - and that these should be respected; although 50% or more sales commission has become the norm for galleries, both artists and dealers know that the level of such fees should reflect a correspondingly substantial amount of marketing and promotion work being done for the artist; publicly funded galleries invariably put into writing their contractual arrangements with artists (exhibitions, commissioning, residencies, sales); many private galleries and dealers still seal their deals with artists via a handshake rather than via paperwork, but in recent times the new generation of younger art market professionals is increasingly working with their artists genuinely to negotiate and agree their deals in writing. As for intellectual property, artists are increasingly working in mixed media and with digital technology (music, film, video, performing) and are beginning to learn from their traditionally-collectivised colleagues in the music, film and performing arts industries the value and importance of professional practice in managing their creativity.

© Henry Lydiate 2006

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.