Of ha’pennies and cakes – servicing public arts development

Deja vu was the last thing I expected to experience when I went to Leeds last month to contribute to the Public Arts seminary ‘Commissions and Contracts’ – a one-day exploration of the legal issues relevant to commissioning art works. Of course, the subject matter was familiar territory which I first addressed fifteen or so years ago, when Artlaw Services started, so I shouldn’t have been fazed by that. Perhaps I should have realised the inevitable. I am not normally one to look back and conduct post-mortems over where things must have gone wrong. Nor is that the purpose of this piece. What happened was so thought provoking, I have to tell all.

We had explored the desirability of constructing and implementing a model contract for commissions, tackling head-on the unique nature of every commission – making model forms very difficult – and the need for artists, agents, commissioners and funding bodies to check and list points for negotiation, note agreed arrangements, write to each other in confirmation and keep file copies of all documentation. Those who don’t hesitate are lost: hesitate, negotiate and indelibly communicate (with duplicate): Lesley Greene’s Public Art Development Trust experiences then served to illustrate an illuminating canter through the ‘do’s’ and ‘don’ts’ and thought processes involved. First point standard models are virtually impossible, but do try to consult an art lawyer – one versed in visual arts matters and experienced in public commission contracts in particular – at a price you can afford.

‘Developing artists’ rights’ came after lunch and gave Rory Coonan, an Arts officer of the Arts Council, the opportunity to unfold successes in his newly developed role as the Arts Council’s ‘intellectual property’ expert, justly receiving praise for the Arts Council having persuaded the Government to offer substantial improvements to artists’ rights, now emerging in the Copyright Designs and Patents Bill currently passing through Parliament (see Art Monthly 112). Second point – the Arts Council hopes to publish a guide on the new copyright and moral rights provisions in the autumn of 1988.

We then had Roland Miller performing, this time as coordinator of the National Artists’ Association, revealing his concerns that artists are not taken seriously at an organised level – compared with, say, the Republic of Ireland, where the AAI (the Irish artists’ association), not the Irish Arts Council, has direct dialogue with central government on matters concerning artists and the arts – rattling through a bundle of radical republican artists’ rights not given here but enacted as law by other European and some American states (public exhibition payments, withdrawal of work from public exposition, and re-sale royalties), and finally taking a friendly side-swipe at the Arts Council for turning down a grant to the NAA.

Third point: participants hear that the Arts Council is not allowed to support service organisations. Ensuing participation from the audience centred on the need for art school education to offer students and tutors professional studies courses on all aspects of professional practice (not just commissions and contracts, but also selling, marketing, public relations, accounting and record-keeping, tax, copyright and so on), for similar courses for artist practitioners in the field and for arts administrators; and for publications offering check-lists for contractual negotiations, and (we hope) standard models for exhibiting, selling and so on, and expert tips on appropriate approaches to such business matters. Everyone saw the dangers of artists increasingly being commissioned, especially for public art projects, yet possibly ruling through ignorance, naivety, lack of instruction, inexperience, non-education and inaccessibility to professional lawyers, accountants and others known to be experienced in the visual arts to deliver effective, efficient and successful execution and after-sales services.

Deja vu:
Artlaw Services was a national charitable organisation established to provide information, education, advice and assistance to the art community at low or no cost, from lawyers, accountants and administrators versed in art-related law, finance and administration. Seed-funded by the Calouste Gulbenkian Foundation in 1976 for three years, then fully-funded by the Arts Council from 1979, it was dropped by the latter in 1983, on the basis that the market demand (mainly artists, partly administrators) for such services was big enough to pay for them in full – a denial of the very reason) for its own investment in establishing the services initially. Did the audience consider such an organisation still necessary and desirable? I found myself asking them. Indeed they did. I am not therefore saying now that Artlaw Services should be resurrected. What I am saying is that there is still an unmet need, greater today perhaps than was apparent to the Artlaw crew fifteen years ago, for Artlaw-type services now enhanced in the light of recent developments. There should be established a national Art Business Unit: a body of experts in the field of art-related law, accountancy and business administration, charged with advising, assisting, educating and informing everyone – artists, administrators (public and private), collectors, associations and groups, local authorities, Regional Arts Associations – even the Arts Council. Its basic running costs should be funded centrally, with its programmes financed by those willing and able to pay (according to their means). We know it’s a tired old cliché always to look to the Arts Council for central arts funds, and especially now when it appears to have a policy of not supporting service organisations, but can that be right? The Arts Council’s Royal Charter solemnly binds it to promote, maintain and advance the arts. Its current policies appear to involve getting funds for the major national arts institutions and for the Regional Arts Associations, to whom it hands over the cash, and devolving its previous in-house visual arts services, such as the Serpentine and Hayward Galleries – leaving seriously slimmed-down in-house resources to mind the shop, initiate and coordinate projects in the field, sponsored (it is hoped) by business or any others beyond 105 Piccadilly.

The Arts Council is not allowed to support service organisations – yes, that is what is said. What, then, in God’s name, are the Serpentine, the Hayward and the Regional Arts Associations, if not service organisations? And if there is a case for central funding of some service organisations, is there not an equally valid case for such funding of other, especially national, arts service organisations, in furtherance of the Council’s chartered objectives? For it is those, the nationals, which would find it impossible to achieve their own core funding from all the Regional Arts Associations and the Arts Councils outside England – as indeed was the case when it was tried by Artlaw Services between 1976 and 1983. One answer may be that the Arts Council sees itself as the only, or only appropriate, national arts service organisation, which perhaps has not yet been able to publish plans to provide, in-house. Art Business services along the lines described above. We just don’t know. What is dear, though, is that their current policies require artists, administrators and arts organisations to develop and apply business skills (to find a market place/sponsorship/private and public support); involve persuading central government to improve artists’ economic bargaining positions in the marketplace through enhanced legal rights (by Polishing the commissioning rules which currently deny some artists copyright); and caused the launch of an urban renaissance programme cajoling commerce and industry to talk business with makers and arts administrators.

The Arts Council is aided and abetted in these policies by central educational policies requiring the arts schools, their staff and students to do likewise. In my judgement, all of these things will come to nought, or go badly awry, if the makers, administrators, educationalists and arts students are not given access to art business advice, assistance, information and education – and at a price they can afford. Having taken this reluctant look over my shoulder, I am reminded of a phrase my northern granny used to say whenever I tried to get something for nothing. ‘You can’t have the ha’penny and cake as well, lad’. On January II, 1984 – four years ago – as honorary chair of the Artlaw Trust, I sent the Secretary-General of the Arts Council a letter of which the three paragraphs printed below constituted the gist. With the letter I enclosed a proposal for the establishment of an arts business unit. Four years later the Arts Council says it is not allowed to finance service organisations. Here are the three paragraphs:

‘As Honorary Chairman of a recent non-revenue client, Artlaw Services Ltd., and in my new capacity as Honorary Chairman of the Artlaw Trust which is endeavouring to carry on some of the services Artlaw Services used to provide, may I ask you to consider the enclosed review and proposal.

In essence, what we have identified as a result of our experiences over the past ten years is that there is still a great and unmet need for information, education and publication services to be provided together with a switchboard service providing referrals to professionals in the field able to offer advice and assistance, but not simply on artlaw matters; the proven unmet need is for a broader brief to include all business aspects of professional practice and of arts administration, public and private.

We propose that an art business unit is needed to provide these services. Our experiences prove that whilst some income might be derived from providing such services to private individuals and organisations, there needs to be a permanent guaranteed source of income to secure the continued existence of such a unit which could then use that earned income partly to fund its programmes and partly for growth.’

Next month this column will publish that proposal with a gloss.

© Henry Lydiate 1988



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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.