Living Legacies

Two interesting new tools have recently been published to help artists plan their legacies. In October 2018 the UK’s Art360 Foundation launched a free app designed ‘to make archiving and cultural preservation skills available to all’, and the following month the US’s Joan Mitchell Foundation released a freely downloadable workbook that ‘compiles legal advice and essays that can help artists plan their legacies’.

These endeavours are welcome additions to the growing number of initiatives developed in recent years focusing on artists’ estates – whether from the perspective of living artists planning for posterity, or of heirs and successors inheriting management duties. Both perspectives share the same or very similar needs for specialist information, knowledge and skills.

In 2013 the UK’s Royal Academy published a monograph on estate planning in the visual arts: The Artist’s Legacy. The Art360 Foundation was established by DACS in 2015 as an independent charitable body ‘to meet the urgent needs of many visual artists and estates who need practical support and advice about managing their archives and legacies at a time of austere cuts to the arts’. The same year the Joan Mitchell Foundation launched Creating A Lasting Legacy: Estate Planning Workbook for Visual Artists as a ‘practical tool for artists and/or their supporters to use when carefully assessing and identifying the unique estate planning needs and concerns specific to the visual arts’. In 2016 the Germany-based Institute for Artists’ Estates was established as a research and management consultancy, together with its companion publication The Artist’s Estate: a handbook for artists, executors and heirs (AM401).

Creating A Lasting Legacy (CALL) began as a research project by the Joan Mitchell Foundation a decade or so past ‘to provide support to older artists in the areas of studio organisation, archiving, inventory management, and through this work create a comprehensive and usable documentation of their artworks and careers’. CALL’s latest output is its publication Estate Planning for Visual Artists: A Workbook for Attorneys & Executors. Serving as a companion to the 2015 workbook (designed for artists), this new tool offers valuable insights not only for artists’ lawyers and executors, but also for artists themselves in planning for posterity. The artist who wrote the book’s foreword rightly says that any reader will ‘come away with the essential information needed to assist an artist in planning their estate … and a wake-up call to visual artists to recognise the value of what they make, but even more essential, to place importance on creating a legacy plan that can be carried out after they die’.

Key issues explored include wills, trusts and how to establish artist-endowed foundations, plus insights from artists about their own practices and views about legacy. Relevant contributions are also made by authoritative cultural stakeholders, such as Kate Haw, director of the Smithsonian Institute’s Archives of American Art in Washington DC, Katy Rogers, director of the Robert Motherwell catalogue raisonné project at the Dedalus Foundation, and Jill Sterrett, deputy director at the University of Chicago’s Smart Museum of Art. The workbook resulted from the Foundation’s collaboration with the Arts & Business Council of Greater Boston and Volunteer Lawyers for the Arts of Massachusetts.

The guide is structured logically, and is in effect a vade mecum that can be dipped into at any point for reference. Illustrations and comments from artists are peppered throughout, such as the introductory quotation from Native American artist Jaune Quick-to-See Smith: ‘Every artist, young or not so young, needs a will … that allows for change over time and one that gives instructions about where the artwork should go upon the artist’s demise. Artwork is different from cash or real estate.’

Ars longa, Vita brevis, is the guide’s mantra. A ‘Legacy’ section explores two contrasting scenarios: one where artists die without having made plans and provisions for their legacy; the other where an artist is young and emerging, with an array of possible future opportunities. ‘The Artist Client’ section focuses on the approach of any professional adviser: getting to know the artist client; framing the artist’s legacy; managing the estate; considering whether the artist’s estate will include artwork collected from other artists. ‘The Estate’ section is understandably the largest, and includes essential topics such as: inventory of works and related archival materials; storage and safeguarding; contractual agreements and relationships; appraisal and valuation; non-art assets.

Knowledge and skills required for successful artists’ estate planning commonly apply in most countries where artists practice, and this is reflected in CALL’s guide – save in one key respect: copyright law in the US contains unique provisions that the ‘Intellectual Property & Copyright’ section covers in a clear and concise manner. It is often not understood by US artists and their advisers that copyright law includes complex mechanisms allowing artists to reclaim their full copyright interests many years after contracting them away, and ‘it is important for estate planning attorneys to know about and plan for this option’. Just like the EU’s Artists’ Resale Right, US artists’ reclaiming rights can never be lost or sold or signed away: in legal jargon they are inalienable.

This copyright section further explains that artists regaining their full copyrights can ‘have great appeal’ where a US artist has signed away their reproduction and merchandising rights on unfavourable terms (at an earlier stage in their career, say, because they then needed the money and had little or no bargaining power). The law gives such artists a five-year window during which they can terminate rights they signed away years before. Because the legal formula for calculating the termination window is complex, termination and regaining rights are often overlooked by artists (and occasionally by their advisers).

Nevertheless, US artists’ estate planning ideally should explore whether termination and regaining of full copyrights should be exercised, and at the right time. For example: if an artist gave or sold publishing rights to a publisher on or after 1 January 1978, a five-year termination window to reclaim those rights begins 40 years after the publication date. US artists’ copyright lasts for life plus 70 years post mortem, and can therefore run for decades after reclamation.

CALL’s guide is based on a fundamental premise that ‘art market recognition is essentially unnecessary to the process of archiving and caring for the work’. This is also the rationale behind the Art360 app, which is offered as ‘a motivational tool, created for artists of all disciplines and at any career stage’. Similar to the Joan Mitchell Foundation, the Art360 Foundation worked with artists and their estates to research, identify and meet their estate planning and management needs. Notable research findings were that ‘81% of artists have never worked with a conservator or archivist and that 71% were not aware of the conservation status of their archive’.

Art360 app’s pilot testing aimed to deliver a tool that is ‘simple to use and breaks the process of archiving into manageable stages’. A step-by-step approach is offered for ‘the effective management of physical and digital assets, with advice on how these can be maintained and protected, enabling artists to determine a method and pace that suits them’. Legacy creation and management are sensitive and complex subjects. These initiatives bring them to the fore, and offer artists practical help and support.
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© Henry Lydiate 2018

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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.