Anticipating Future Uses of Work

A traditional assumption of many commissioners, owners and users of artworks is that artists should consider themselves lucky, even privileged, to have been paid for doing what they enjoy and therefore have few if any rights or bargaining powers.

This premise has broken down and changed in recent times, as increasing numbers of artists have become more familiar and comfortable with the commercial dimensions of creative practice, their rights and bargaining strengths. Many artists now successfully employ negotiating skills in their business dealings to secure binding arrangements that anticipate future uses of their work, and the respective rights and responsibilities of themselves and others. However, not all artists and those dealing with them and/or their works always anticipate future uses and the rights and responsibilities they bring. Let us consider some recent examples.

An artist was commissioned to conceive, design, fabricate and install a work to be sited in a public place. There was no single written contractual document- clarifying the respective rights and responsibilities of the artist and commissioner, but a series of emails, hard copy letters and handwritten notes between them reflected the key points of negotiation: the nature of the new work, its siting and the artist’s overall fee. After installation and full payment to the artist, problems arose when the commissioner decided the work should be modified and/or relocated. The artist was consulted, but did not agree. The respective rights and responsibilities of the artist and commissioner in this situation should ideally have been anticipated and dealt with in the parties’ original contractual documentation, but were not. In particular, such mutually agreed documentation should at least have included clarification of who would be the owner of the work after installation (artist, commissioner, a maintenance trust, the site owner?); and whether the artist’s transfer of ownership to, say, the commissioner was on the strict condition that ownership would revert to the artist if in future the work was changed or relocated.

Antony Gormley owned Another Place, 1997, when he was commissioned to install the work for a fixed period on Crosby Beach. The artists whose works are periodically commissioned to be located on the fourth plinth in Trafalgar Square for a fixed period also own their works. Richard Serra’s Tilted Arc, 1981, was commissioned by the US General Services Administration to be located in Federal Plaza in New York City. It was duly installed, but became the subject of a campaign for its removal and/or relocation – to which Serra strongly objected, giving evidence in the later lawsuit that the sculpture was site-specific, and that removal would destroy it. The lawsuit failed, and the sculpture was removed, cut up and sold as scrap metal. US federal law at that time did not then, but since 1991 now does, give artists the statutory moral right to prevent any intentional or grossly negligent destruction of their work, if it is of recognised stature. Legal arguments at that time therefore had to rely on the content of the original contractual commission.

Since 1989 UK statutory moral rights give artists the right to object to derogatory treatment of their works whenever exposed to the public (so that proposed changes to a public artwork can be prevented, even if the artist no longer owns the work), but such rights do not allow artists to prevent relocation – hence the need to clarify this matter through original commissioning documentation.

An artist was commissioned to produce original illustrations for publication, with no clear contractual documentation dealing with the problem that later arose. The commissioner refused to return the original artwork to the artist, on the basis that the original commission fee ‘surely’ included payment for ownership of the original work. Much time and money was unnecessarily expended in persuading the commissioner what should have been clarified at the outset – that the original commission was a contract only for the provision of artistic services (and the artist’s copyright licence allowing publication), but not also for the sale of the original artwork.

In recent times, intellectual property laws have strengthened artists’ rights over use of works they no longer own. Artists Resale Right (ARR) has been widely publicised both before and after its introduction into UK law in February 2006. ARR gives artists the statutory right to a small fixed percentage of the resale price of works they no longer own, whenever an art market professional is involved in the transaction throughout the European Economic Area and 30 or so countries beyond. In addition, copyright owners have the exclusive right to prevent reproduction and publishing or other merchandising of their works, which means that modem and contemporary galleries or museums need a copyright licensing agreement – usually with the artist copyright owner or their estate – in order to merchandise copyright works m>their collections. Finally, it has now become fairly common knowledge that the buyer of an artwork – of the physical object – does not also automatically buy any rights to reproduce the work or authorise others to do so.

As discussed in last month’s column, artists are increasingly working in new media, film especially. An artist was commissioned to make a film to be shown at a cultural event organised by the commissioner. There was no single contractual commission agreement signed by the parties (as would have been normal trade practice in the conventional film industry, even before any pre-production work had begun), rather an exchange of correspondence between the parties. After the film was made and successfully shown, the commissioner sent a written draft contract to the artist proposing basic terms and conditions of the original agreement together with new proposals for the merchandising of the film via television broadcasts and DVD retailing. Did the artist have any bargaining powers to negotiate the further use of the film and to secure future revenues from such merchandising?

Copyright laws throughout the developed world, including the UK, give automatic intellectual property rights to key professionals involved in filmmaking. Such laws allow those professionals to enter into contractual arrangements with each other (and third parties, such as financiers, distributors, film theatres, TV stations) dealing with the ownership and use of such intellectual property rights – in advance of those rights arising. Those intellectual property rights arise as soon as the film enters pre-production. The artist in this case is therefore in a strong bargaining position with me film’s commissioners, who have opened up new negotiations – albeit after the event – to vary and/or add to their original contractual agreement. The commissioners need to persuade and induce the artist to agree to these new proposals, because the artist is in law the principal director of the film, and owns copyright in the film jointly with the producers of the film, who are the commissioners. As joint copyright owners they, together, have exclusive worldwide rights to prevent or authorise its being reproduced, distributed, shown or sold to the public. The joint copyright owners therefore need to agree between themselves any merchandising ventures, which means that any one of the joint copyright owners cannot do so unilaterally. Moreover, as principal director of the film, UK law also gives the artist exclusive statutory moral rights in it, which include the right to be identified as author of the film and to prevent the film being treated in a derogatory way, whenever it is exposed to the public (such treatment includes any additions, deletions, amendments or adaptations not authorised by the artist in advance). Accordingly, the artist can use all those intellectual property rights as very strong bargaining took in negotiations with the commissioners about the future use and merchandising of the film via a new written merchandising contract.

All of this thinking ahead adds a further important dimension to the professional concerns and envisioning of contemporary artists.

© Henry Lydiate 2007

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