Soul Trading

The classic 'who, where and how' of marketing, to which Nich Pearson implicitly referred last month (Art Monthly No 95, p.9) when bemoaning the absence of vigorous professional marketing in the visual arts in recent years, inspired serious thoughts about the woeful lack of creative enterprise in the exploitation of copyright - by artists and all others involved in the marketplace.

I entirely agree with Pearson's points: serious marketing is little understood and thinly applied; more education of the public in the visual arts, whilst necessary and desirable, is not the complete answer to increased consumption of work - nor is this marketing. Not only is passivity protean, attitudes towards the public are decidedly negative in the sense that the flavour-of-the-decade sponsorship syndrome presupposes loss-making/uneconomic/damaged visual arts projects. It's the same old bag of beans approach, which requires re-thinking: more of the making-showing-and-with-luck-selling syndrome simply hasn't and won't improve the situation of visual artists in general; it can only work for the few.

A leading gallery proprietor once observed - confidentially, of course - that the real market for contemporary works was more or less finite (x number of collectors doing the rounds annually, with x thousands of dollars to spend between them annually, looking for x number of established and x number of new artists to support annually), and the real economic question was how many of that gallery's stable of artists could be dropped that year to make room for an equivalent number of new names - certainly without economic loss and, hopefully, with some gain. This cynic could well be right. I don't know. The relevance of that observation is that it could be true (and there's enough evidence in support), in which case no amount of vigorous activity will improve the economic situation of anyone - apart, of course, from the chosen few whose marketplace and prices remain effectively fixed.

Is it sufficiently understood that successful visual arts marketing is not a competition for the purchasing power of existing buyers, which can only result in redistribution of custom and survival of the fittest? Surely the potential marketplace is bigger than that? Who, where and how?

Who?
Not just the small secret society of collectors and occasional commissioners. Targets can and should include the Arts Councils, Regional Arts Associations, the Design and Crafts Councils, Local Authorities, Departments of State dealing with Environment, Arts and Libraries, Education and Science, and the Treasury -at least-(all of these as consumers, not just as foragers for funds); public corporations and undertakings, schools and colleges, universities, hospitals, transport authorities, and banks; private companies; individuals, targeting adults separately from children, and in different geographic and socio-economic groupings. And there's more; but each one group or any combination is a veritable cornucopia of largely untapped visual arts consumption.

Where?

Not just gallery/exhibiting situations, or studios. Targets include: television stations and production companies (broadcast as well as cable); likewise, film and video makers and producers; prints, posters, post-cards, books, magazines, papers and journals; static advertisements; clothes; vehicles; record, disc and tape sleeves, covers and general packaging and marketing; fabrics; crockery; performance venues and stages; offices, shops and homes. This may sound trite or obvious, but contact with the general public is necessary in all places for the marketing of any product (c.f. visual arts) to be achieved. The public (the who?) needs more extensive visual art opportunities, more time to become more familiar, to gain more knowledge, then to experience visual art, fundamental aim/objective of makers. And even this sounds trite; but how else do artists and their entrepreneurs seek or hope to achieve these things. No, not how else, rather: How?

How?
To bring about the successful and fruitful marriage between the consumer-public and the maker-artist - the how? - requires the application of professional marketing skills. And here is the crouch: most of what has been discussed so far apparently relates to the law not a jot. Not so. None of this - other than making/exhibiting/ selling - can be achieved without reproduction, publishing, broadcasting or diffusing work. That is how marketing is to be achieved in the visual arts. And that involves copyright (to which we shall return shortly). First, and bearing copyright in mind, what professional skills need to be applied in marketing the visual arts?

1. Product Planning
This dirty commercial term means ongoing development, modification and refinement of 'the work': it involves experiment and research, which needs time and money for this essential, regenerative process.

This oft forgotten fundamental facet of making work should affect prices and should somehow be communicated to the consumer.

2. Fact Finding and Analysis
Related to the first point: it's about time and money to develop techniques and knowledge of materials and resources - to be filed and used; especially reproductive and other publishing possibilities.

3. Advertising
Not just exhibiting; writing letters, papers, articles and other literature and/or making personal professional appearances and/or offering and arranging studio visits. These things market the artist - and, thereby, the work.

4. Public Relations
Good PR is a seduction to opportunity e.g. following up leads, putting oneself outgoing reliable/making an effort. The artist/maker is being marketed - and so the work.

5. Fees
Ask any gallery director how pricing is done; then try to better it. Take into account materials, studio overheads, time for research/thinking and execution and, in relation to sales, prices previously established. For reproduction fees/royalties, consider how many articles/copies are to be authorised, over what period, over what territories, in what media, and how exclusive the permission to reproduce is to be.

6. Branding
When selling toothpaste, this means producing 'Glitto' with stripes, without stripes and in spearmint; then competing against yourself with a 99% identical formula packaged as 'Pearl Polish' - for those who appreciate finesse in oral hygiene'. The idea, of course, is that the customer gets a choice. For the visual artist, branding could mean selling one-off drawings/paintings/sculpture and so on, one-off limited editions of similar subject matter, and mass produced multiples (see, Where?, above); in this way, the artist covers an entire range of prices/fees and offers a choice of treatments and related material.

7. Distribution
Where will consumption occur and how will the visual art get there? Multiple venues/outlets simultaneously for one multiple original, for instance. Creative connections can be made - the nature, subject and any title of the work should suggest to the artist/maker where work, or reproductions, might effectively be distributed. Flower sellers don't operate outside hospital and cemetery entrances by chance.

8. Promotions
The free plastic daffodil with the soap powder - the 'money-off'. Appropriate promotions can include, for instance, lending work to institutions (see Who? above) hire-purchase, credit facilities, and any or all of the merchandising (cheap or otherwise) mentioned at Where?, above.

9. Display
Not just traditional exhibiting. Display involves careful professional training, mounting, transport, hanging, and lighting of one-off works; and distribution and publication of suitable reproductions in really public places where large numbers of people will see the image - waiting areas, hotels, restaurants, offices and so on.

10. Physical Handling
This can promote or pole-axe certain works. Potential exhibitors, collectors or merchandisers may be deterred on grounds of cost or complication if the artist needs to be present for installation, exhibition, transport - or even for reproduction purposes; or if work is particularly large, bulky or heavy. If work is to be touched by the public, large or small in number, protection for the work as well as for people against injury or damage is always essential. Conversely, would the public derive more knowledge and experience of the work if they were able to handle/walk around/through the piece and/or a reproduction?

11. Packaging
Classically, this involves framing: the public are deterred by absence of a frame - especially a 'good' frame - even, if not especially, for a reproduction. Packaging is about presenting work in such a way as to enhance its saleability; even protective packaging can do this when in transit, stored or racked for retailing purposes.

Good packaging also promotes respect through evidence of a professional approach, in the eyes of the customer, in addition to its primary function of protection.

12. Personal Selling
A major factor, possibly the chief One, in most contemporary art transactions, which should not be underestimated. For the artist/maker it means a careful choice as to suitability and knowledge of the salespersons, at all stages; and a thorough assessment of what role, if any, the artist intends to take. The maker's role can be crucial: often, indirect social contacts lead people to view work by putting over information about the image and of the making process, which arouses interest and some feeling of familiarity. Making work and switching off is not productive and positive marketing.

13. Servicing
'After-sales' care is vital: to artist and buyer. If no adequate provision is made at time of sale, later servicing can become a costly burden to the maker; and can result in work becoming neglected and looking tatty, with collectors finding themselves experiencing technical problems such as rusting bolts, or whether to repaint an outdoor sculpture. A measure of voluntary servicing is good PR, e.g. a visit to a collector's new home/gallery to check the installation of work. But works which are bound to need servicing should only be sold or placed with absolutely clear agreements and instructions about responsibility for maintenance (see Art Monthly no 95: 'Artlaw'). Remember, the maker will always be liable in any event, in law, to the collector for any inherent/latent defects needing attention; and such liability can only be minimised, sometimes obviated, in law, if adequate arrangements are made at sales/placement point for future care of the work.

Copyright considerations
Marketing visual art beyond its traditional bounds inevitably involves reproduction and publication (as mentioned earlier). This raises copyright questions which need not be problematic. Artistic copyright owners should bear in mind these essential points:

  • to sell/place a work does not automatically transfer copyright to the collector;
  • copyright can only be transferred in writing with the signature of the artist copyright owner - rather like selling a leasehold or freehold property;
  • copyright owners have the exclusive right to prevent 'restricted acts', namely:
    • all reproductions
    • all publications
    • all broadcasts
    • all diffusion
      (and throughout most of the world, usually for their lifetime plus 50 years);
  • copyright owners' right to prevent the restricted acts means they are entitled to claim compensation from those who commit infringements (i.e. unauthorised restricted acts);

 it follows that only copyright owners can authorise others to reproduce/publish/broadcast/diffuse their works - in different territories, for a period or periods of time, for different merchandising purposes, and so on.

Such copyright authorisations are known as copyright licences'; they can be given for free, or for a flat (one-off) fee and/or for royalties (a percentage of -the profits, or retail/wholesale price involved in merchandising). They need not be given in writing, but most professionals only ever give licences in writing to avoid confusion and/or disputes in the future.

Cautionary tail
An artist recently authorised her abstract painting to be reproduced by a rag-trader on a sweat-shirt: x thousand shirts; for retail in the UK; t% of retail price as royalty to artist, payable monthly a month after written statement of account; option either way to extend copyright licence for a further x number of shirts. They sold out in weeks; option renewed, further renewed: both parties very happy. Competitors in the rag trade took the image, altered it slightly, manufactured T-shirts bearing the altered image, as their own - without permission of the artist copyright owner. Artist less than pleased: asks competitors to stop the abuse and seeks compensation. Other traders refuse, arguing that the slight alteration gave them carte-blanche to use the altered' image as their own.

Artist sues: successfully. Law says alteration is still a copyright breach: artist copyright owner never gave permission for copyright image (original painting) to be reproduced even in an altered form; entitled to remedy, namely: compensation for damage to original venture; all profits from infringing venture transferred to the artist; all infringing T-shirts, bromides, plates, matrixes and other equipment used to manufacture the infringing articles - all of those things - transferred to the artist; plus order for infringer to pay artist's legal costs.

NB. A common myth in the rag, and other, trades is that a 'slight alteration' is allowed by law. It isn't. The myth is strengthened and supported, it seems, by the paucity of publicity for cases - such as the one mentioned here - where successful copyright actions - or, more usually, out of court settlements of them - occur. They are protean. (Further information, advice and help is available from the Designers and Artists Copyright Society. St Mary's Clergyhouse, Whitechurch Lane, London E1). Visual Arts Business Unit

It has been suggested to ACGB, in recent years, that such a unit be established: its principal objectives would be:

  • assist artists and administrators in the professional marketing (as well as in the customary selling and commissioning) of the visual arts;
  • and in the professional, financial, legal and administrative skills and techniques necessarily required to support such professional endeavours.

Secondarily, to lead by example, by creating, promoting, maintaining and advancing the visual arts market through engaging in projects and enterprises itself - from which income would be derived and used for growth, bare overheads being provided through direct ACGB grant. The idea doesn't appear to have been taken up. Perhaps it's because, as some observed about the suggestion, it sounds too much like a formula for what ACGB itself should be doing. Perhaps they were right.

© Henry Lydiate 1986
(with thanks to Liz Lydiate for reference to her invaluable piece, 'Is Marketing Still a Dirty Word in the Visual Arts?', published in The Art Magazine, 1981).

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.