Making Waives

A gallery which advertises a work for sale is allowed to make reproductions without the copyright owners’ permission. But it is not allowed to generally merchandise; catalogues or posters which are subsequently put on sale to the public when the exhibition or sale is over must be authorised by the copyright owner.

However, these rules do not cover exhibitions where works are not for sale. But the practice has grown up of galleries or museums mounting such an exhibition and asking artists appearing in the show to waive copyright fees in respect of images reproduced in the catalogue, exhibition posters, gallery guides, education packs and other associated press and publicity items. Artists, largely the young or unknown, appear ready to agree; pressures on them are great, for obvious reasons. We also hear that established artists equally find themselves being pressed to authorise reproductions and waive their copyright licence fees. All of this is odd and runs contrary to the spirit and letter of the new copyright rules. These were introduced for the specific purpose of removing these practices and strengthening all artists’ bargaining positions when negotiating non-selling public sector showings.

In cases where young artists’ works are being presented by small galleries they may reasonably decide to waive their fees for reproducing their work in a catalogue or on posters. Such a gallery is likely to be investing money in the production of a catalogue. Such an artist is making a financial investment equal to the price of their copyright fee. The catalogue has value to the artist, gallery and public, but its sale price is unlikely to cover even the production costs. Therefore reducing the cash outlay is essential to its production, and most artists are quite happy to receive no more than a number of courtesy copies. However, the practice of asking artists to waive their copyright is also common to public exhibitions with large budgets, in which the value of the catalogue to the artist is significantly outweighed by its value to the gallery. An exhibition such as the Pop Art show at the Royal Academy is not created to sell the works on display. Although such shows may have an effect upon the market value of works by the artists represented, this is not necessarily of economic benefit to the artist and any that does accrue is impossible to gauge.

Such an exhibition would be designed to present to the public a particular set of works for specific art historical reasons; artists’ work will be selected upon art historical or critical criteria, also the public now expects that such exhibitions will have a catalogue representative of work in the show as well as posters and postcards; the gallery would organise the production and sale of this merchandise to make a profit. The sponsors of such a show would see credits in the catalogue and on posters as important recognition of their funding and they would expect that the merchandise was of a quality that reflected well upon them and increased the value of the sponsorship. In such a situation, although the artists would receive some undoubted benefits from having their work included in the catalogue, this would be miniscule compared to the economic benefits enjoyed by the publisher. Reproductions of the artists’ works in a catalogue and merchandise are essential, not peripheral.

The argument used to press established artists to waive their copyright fees in such cases is the same as that used with young artists – they are lucky to have their work represented in the catalogue, which will sustain and enhance the reputation of their work. We disagree: either artists are worthy of inclusion in the catalogue or they are not; if they refused to have their work included in the catalogue unless they were paid a reasonable fee they might do considerably more damage to the reputation of the gallery than to their own careers. Moreover, when vast sums are spent on organising an exhibition, to ask an artist to waive a copyright fee is pure exploitation.

Big exhibitions are expensive to mount, but they are big business nevertheless. The Pop Art Show was sponsored by Mercury and The Independent whose names adorned every piece of press or publicity material. With the public paying to view the exhibition, the amount of money in circulation must have been huge, and everyone, from the directors to the cleaners must have been paid, yet the artists were still asked to waive their fees, we understand. Compared to the actual exhibition costs, any copyright fees would have been minute but such costs could and should have been budgeted like all other expenditure.

We consulted the Association for Business Sponsorship of the Arts (ABSA); it does not have a specific policy on copyright fees in such circumstances but it does recommend that all transactions should be ‘up front and businesslike, and that includes matters of copyright. What is the business-like attitude for artists to strike in such situations?

The gallery is providing a service to three groups: the public body from which it will get funding for providing exhibitions of a high quality which, as we have stated, today includes a high-quality colour catalogue with a representative sample of the artists’ work; the public is provided with the facility of the works on display, their selection and presentation, and in the merchandise on sale with the show; it is also providing a service to the sponsor – exposure by way of name and association with the exhibition and its attendant merchandise.

Artists provide a service to galleries essential to the carrying out of their functions. Sometimes they will be providing works, information on the whereabouts of works or information for the catalogue. And they provide permission for the reproduction of their works in merchandising. All of these services are essential for the exhibition to be successful.

The value of catalogues and exposure for artists may be great, if the show is successful. Even so, such value is nothing compared to the importance of the artists’ agreeing to show and helping with its mounting and in the production of merchandise. Artists should think carefully about allowing reproductions without some kind of payment: A recognised artist should not be expected to accept courtesy copies. If the gallery is unable to pay a reasonable cash fee, then they should at least provide the artist with the value of catalogues equal to the fee. The exhibition is a business venture. The risk should be taken by the gallery which receives money from the sponsor, the state and the public. Artists when they start out are constantly subsidising their own work, so why should they do so when they provide services to large and well-financed institutions?

Public institutions should be setting a high standard in an area where standards are, unfortunately, self-evidently low. They should not be using the standards which exist in private publishing to avoid paying artists a fee which would amount to a minute proportion of the overall budget for a large exhibition. Nor does it help, when artists do insist on being paid a copyright fee, that they are then considered, and labelled, difficult. If public institutions may be strapped for cash, why don’t they make arrangements for payment in lieu to the artists, either in catalogues, tickets or other services of value which the artist might otherwise pay for? Incidentally, we have not discussed in this context the statutory moral rights of artists to prevent derogatory treatment of their works in any reproductions they might authorise. We hope that pressures to waive copyright fees will not be applied to cause artists to waive their legal rights to control the quality of any reproductions or merchandise.

© Henry Lydiate and James Odling Smee 1992

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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.