Art Law Introduction
Visual artists, like any other members of the community, are subject to the ordinary laws of the land, but many are often unaware of the significant role the law plays in their working lives. Major problems are experienced in securing studio space; meeting the cost of materials, and equipment; publicising work; obtaining contractual arrangements with galleries; making arrangements for the payment of income tax and national insurance contributions; understanding the patronage structure and system; and obtaining unemployment and supplementary benefits (cf 'Support for the Arts in England and Wales' by Lord Radcliffe-Maud, published by the Calouste Gulbenkian Foundation. p.143). Each of these everyday problems involves some aspect of law and many are entirely legal.
If artists were informed about the relevance of the law to their working lives, they would be in a better position to identify legal problems for the purposes of guarding against their occurrence or recurrence by obtaining advice and help from lawyers sympathetic to, and experienced in dealing with, legal problems peculiar to them as artists. The following (actual) example illustrates these points.
P. is a print-maker and leaves ten of his numbered prints from limited editions with G.Ltd., a gallery, with a view to their being exhibited and sold for a commission. A year later P. asks for the return of any unsold prints and the purchase price, less commission, of any sold. G.Ltd. say they have lost all the prints and have sold none and offer to pay P. re-printing costs. P. refuses and insists he cannot re-print because the prints were of numbered and limited editions; he wants them back or their current market value (which has increased by 50% during the past year). G.Ltd. refuse to pay this or even their market value of a year ago.
P. has a remedy by claiming in the County Court for the return of the prints or payment of their current market value. G.Ltd. can only resist this claim if they can prove they were not negligent in losing the prints or in their having been stolen (if that has happened). The court will order the gallery to pay P. damages amounting to the current market value of the prints, or to return them (if they do have them) with a payment of damages for their wrongful detention.
This is a complex legal situation which arose out of the natural course of P 's working life. P. was unaware of the legal significance of the relationship he was entering into when he delivered the prints to the gallery, but was protected by the law, which imposes a high duty of care on a gallery in such circumstances.
At present, no individual organisation provides information on 'artlaw', nor is there any literature available. In future issues this column will provide some of this information by examining 'artlaw' in the following way:
- copyright and patent law: rights to prevent reproduction of work and the unauthorised use of designs.
- artist and buyer: rights and obligations regarding the sale of works.
- artist and gallery: the content of gallery agreements and the position of the gallery as agent/consignee.
- artist and museum: rights and obligations in relation to loans, gifts, sales, reproduction and artistic control.
- artist and studio: leases and contracts for studio space.
- tax law: income, value added, capital gains and wealth taxes.
- freedom of expression: obscenity and defamation in art works.
- artist in employment and unemployment: contracts of service; national insurance; supplementary and unemployment benefits.
- public patronage structure and system.
Each subject will be illustrated with examples based on problems artists have experienced, and readers are invited to contribute information, views or suggestions. The aim is not to create problems for artists or those who provide them with essential and ancillary services, but to promote an awareness of 'artlaw' in order to help artists in particular – and others involved with visual art in general – to avoid such problems arising in the future. However, the question, which requires attention, is whether visual artists, like P. in the above example, would have access to sympathetic and informed legal advice and help without entering into a financial commitment beyond their means.
The first article in this series (issue 1) introduced the concept of artlaw and asked whether visual artists can obtain or afford the legal advice and help they often need in relation to their work.
This can be illustrated by looking at the case of Simon, a London-based painter, who sent work to a New York gallery for sale by them in the States: the paintings were sold and the gallery sent him a cheque which bounced. Simon could not afford to employ an English solicitor to recover the money, because this would have involved instructing an American lawyer to sue the gallery in New York. The costs of this legal action would have been substantial and even though Simon's income would have entitled him to legal aid if the case had been fought in this country, the legal aid scheme does not provide financial assistance for an action abroad. However, Simon knew a sympathetic lawyer in London who voluntarily took the case and instructed a New York artlaw organisation (Volunteer Lawyers for the Arts) to recover the money, which they did free of charge. Simon succeeded because his lawyer friend had special knowledge and experience enabling him to enlist voluntary legal help in the States, and was himself prepared to act voluntarily. This case is typical of many and underlines the real need for artlaw information, advice and help – and at a price visual artists can afford.
This need could be met by the establishment of a national artlaw organisation in this country: as an independent charitable trust, governed by a board comprising professional visual artists, art administrators and art-lawyers, it could be run by small staff from an office in London, the national centre for art and legal administration. Information could be made available through the publication of articles, pamphlets, a periodical and a textbook on artlaw; income from sales meeting publishing costs. Education and training of lawyers in particular (and the art world in general) could be undertaken by conducting courses on practical artlaw problems; course fees covering administration costs. Specialised legal advice and help for visual artists with artlaw problems could be provided: a register would be kept of willing lawyers trained in artlaw, artists being put in touch with them through the organisation; lawyers' fees would be paid by artists themselves or, depending on their income, in part or in full through the existing legal aid scheme. Liaisons could be establish with similar organisations abroad, to ensure that information, advice and help were available internationally, and on a reciprocal basis. Visual art crosses national boundaries and many artlaw problems, like Simon's, are of an international nature.
Until such an organisation can be established, artlaw information will be made available in this column each month; all comments and suggestions are welcome. Copyright is an area of artlaw, which continually affects many visual artists and can cause tremendous problems, nationally and internationally. A case which has recently arisen concerns a painter who intends to use a well-known photograph of a film-star as a basis for a painting: the photograph was taken twenty years ago by an American in America, and was printed in a recently-published book about the star. The painter wishes his finished work to be clearly recognisable as have been derived from the photograph. He wants to know who owns the copyright of the photographic image – the book's publisher, its author, the photographer, the executors of the deceased star's estate, or any combination of them – and what could happen if he completely ignores the copyright question.
These and related copyright problems will be dealt with in the next issue.
© Henry Lydiate 1976