‘God help the Minister who meddles with Art’

Thus spoke the Liberal Prime Minister, Lord Melbourne. I wonder if he’s turning in his grave?

Now we have a Minister for the Arts with a voice in the Cabinet, perhaps the Government’s legislative programme over the next five years will include measures aimed at benefiting the arts community. If any such measures felt necessary or desirable are put forward, the arts community itself should decide what legislation is required, then draft them and start to lobby for their introduction.

Last month we examined one possible legislative shopping list: law reform for the visual arts in the fields of artist’s taxation, social security and copyright, and in charity law for the arts. Now let’s look at a second list comprising new laws which might be introduced to promote, advance and maintain arts activity and the survival of professional artists as members of the working community.

Droit Moral
In this country we have freedoms, developed by the courts over a thousand years of common law; there are few ‘rights’ given to us by Acts of Parliament. Elsewhere, especially in the rest of Europe and in the USA, where the influence of Napoleon’s state-given legal codes are still very much felt, citizens have legal rights.

The artist’s ‘moral right’ is a foreign concept which has never been developed by our courts under the common law, and has never been given to artists by Parliament. There are four elements in droit moral giving artists rights of integrity, paternity, disclosure and withdrawal in relation to their work.

This is the legal right not to have work distorted, mutilated or destroyed so as to injure the artist’s honour and reputation. It exists in (France, where artists are legally entitled to financial recompense when infringement of these rights occurs. The current dispute over the Wandsworth Mural is an example of a case where the existence of an integrity right in our law would enable the artist to prevent the destruction of this work.

It is well established law in Europe and the USA that the creator of a work has the legal right to recognition of authorship. The work of many artists, particularly photographers, is shown, produced or reproduced in publications without credit or proper notice of authorship being given. The existence of a paternity right in our law would enable artists to insist on credit being given and/or receive financial recompense if their authorship were denied or infringed.

Judicial decisions from France show the extent of this right. In the Camoin Case of 1921 in the Paris court of Appeal, the painter Camoin had slashed and thrown away some of his work, but some of the canvases were found and restored, then bought by Francis Carco and put up for public auction as part of Carco’s private collection. Camoin seized them and asked for them to be destroyed. The court decided that the artist had a right to show only work he considered fit for exhibition; that this right was not impaired if he slashed it; and that, irrespective of ownership of the pieces, the artist still retained his moral right to prevent those pieces being shown.

There are few examples of the existence of this right, but it involves the artist’s ability to withdraw a work from public circulation even after it has been sold, transferred or given away.

Resale royalty right
Known in Europe and the USA as droit de suite, this gives the artist the right to receive a percentage (say 5%) of the profit made when a work is resold. The main difficulties with the introduction of such legislation arise from the construction of a scheme which would effectively enforce, administer and collect the royalty. However, these difficulties are not insurmountable and in this country a scheme could be introduced through the existing VAT scheme, whereby art dealers have to charge VAT on their resale profit and make returns of the VAT to the Customs and Excise Office. If an extra percentage were added on to this VAT, representing a ‘resale royalty for artists’, the Customs and Excise could cream off the extra percentage and deposit it in, say, a national fund which could be used for the general benefit of the arts community.

Attempts have been made in the past in the USA, in Europe and in this country to introduce this right as a condition of an artist’s contract of sale. Each attempt has failed, mainly because contract laws do not allow artists to enforce the contractual resale royalty right agreed between themselves and first buyers as a condition of sale. The reason for this is that second or subsequent purchasers are not parties to the original contract and should not, therefore, be bound by its terms. Therefore, some form of legislative scheme would appear to be the only viable method of ensuring the successful introduction of a resale royalty right scheme into this country. (A more detailed explanation can be found in Art Monthly, Number 5, March 1977).

Public exhibition payments
There has been increasing interest in the question of payments to artists whose work is exhibited in public. The principle underlying the making of such payments was stated at the Eighth Congress of the International Association of Arts at Baghdad in 1976: ‘Works by living artists exhibited in or on public buildings, galleries, museums and other public sites and which continue thereby to provide a service to the public, should be subject to a continuing form of remuneration to their creator (comparable to performing rights for theatrical or musical works paid to author and composer), so long as he or she is alive and the work continues to be a public amenity’. (Motion 2c).

This motion was accepted by the Congress. It has also been accepted as a principle by the Arts Council of Great Britain which has devised a scheme for its implementation, on a voluntary basis, in this country, whenever work is shown in Arts Council or other publicly funded galleries.

As with resale royalty rights, public exhibition payments could be made and enforced as contractual terms within Exhibition Agreements. However, this might lead to complex contractual arrangements having to be made, especially when the artist entitled to payment has not made the work available for exhibition and is not, therefore, a party to the contract. The most sensible and sure method of introducing such a scheme, which would benefit all artists and not just those whose works were exhibited in Arts Council galleries, could be to introduce legislation which would inevitably have to include provisions which would ensure proper administration, collection and distribution of payments. It would probably be necessary, in that case, for there to be created a central national register or index of all artists and their works – an idea which has been thrown around for many years.

A building cost percentage for art in public places, tax incentives to encourage art patronage, and the implications of the introduction of all the reforms and new laws discussed in this column in relation to the EEC will be dealt with next month.

© Henry Lydiate 1979


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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.