Public Exhibition Payments

Recently there has been increasing interest in the question of payments to artists whose work is exhibited in public. Any scheme devised would necessarily have legal implications; for this reason, and as a contribution to a wider debate, it is proposed to discuss some of the practical issues involved in establishing and operating a scheme.

The Principle
The principle underlying the making of such payments was succinctly stated at the 8th Congress of the International Association of Art 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 also appears to have been accepted as a principle by the Arts Council of Great Britain. At its July 1977 meeting, it set up a Working Party (under the Chairmanship of Lady Vaisey) to look into the question of making such payments when work was shown in Arts Council or other publicly funded galleries.

The Working Party’s Paper
Before making its final report to the Arts Council, the Working Party has published a Working Paper containing the results of its discussions to date and inviting written comments from the art community. The paper makes four main points:

  1. Payment should be made by the organising body to living artists whose work is shown in temporary exhibitions funded or arranged by the Arts Council of Great Britain or bodies receiving revenue grants from the Arts Council; such payments should be made regardless of who owns the work and of any other financial arrangement concerning the exhibition.
  2. Payment should be based on a flat rate of £250 per showing for a one-person exhibition; if an exhibition is group or mixed, the payment normally applicable for a one-person exhibition should be divided pro rata among the exhibitors and should not be less than £5 per artist per showing.
  3. The organising body, in consultation with the Arts Council, should decide the category of the exhibition for the purposes of the scheme.
  4. Payment should be made to artists residing outside Great Britain only when they reside in countries offering reciprocal rights to artists residing in Great Britain.

The Working Party clearly accepted that the principle on which payment should be based is that artists should have a right to receive payment from public funds whenever their works are exhibited in public. And in order to safeguard the creator’s rights against erosion or exclusion by contract, operation of law or by any other method, it has been made clear that such payments should be quite distinct from payments made for hire of work, commission or installation fees, transport costs or any other financial arrangement concerning the exhibition; that artists should receive payment irrespective of who owns the work; and that only living artists should have such a right. Furthermore, it is implicit that the right should bear no relation to copyright or any other right or royalty. Although performance artists would appear to be included, the Working Paper comments that such artists should not fall within such a scheme since there was an accepted principle of payment of fees for performances.

In order to ensure the widest possible acceptance of the principle and method of implementing such a scheme, the Working Party has clearly felt it necessary to narrow the scope of its initial application to exhibitions organised or funded by the Arts Council or Arts Council-funded bodies; to temporary exhibitions, thus excluding public galleries exhibiting their own collections at their own premises; and to foreign artists showing here only when their countries offer reciprocal rights to British artists.

As regards the rate of payment, there are numerous formulae for base-rates or sliding scales which could have been used, e.g. status of gallery, size of show, number, size, type or value of works, and so on. The Working Party has chosen, in its view, the most equitable method of distributing public funds, i.e. a flat-rate based on a one-person exhibition, and dividing the payment pro-rata among the exhibitors for mixed or group shows, the funding body (ACGB) and the organising body (the gallery) deciding the category of the exhibition for the purposes of the scheme.

Administration and Enforcement
If artists are to be given the right to receive a public exhibition payment, it could be argued that the right should be given to all artists by statute. However, to introduce such an untried, costly, blanket measure at this time could be fraught with difficulties; perhaps an initially less ambitious scheme, introduced on a voluntary basis by the Arts Council, would be more likely to find general acceptance.

If a scheme were devised and adopted on the lines suggested by the Working Party, questions would then arise as to who should ensure its proper administration and by what methods. A voluntary Arts Council scheme would have to be administered and enforced by the Council or its agents. This could be done (in the absence of statute law) by the general use of written agreements by the Arts Council, exhibition organisers, collectors and artists. The two following examples serve to illustrate.

  1. Artist A’s work is shown in G’s ACGB funded gallery. Under the scheme, ACGB should fund G to give A his public exhibition payment. If ACGB and A do not have written agreements with G., both will find it extremely difficult to prove that G had not paid A or that he had ever been obliged to do so.
  2. Artist A’s work is owned by C, a collector, who loans it for a show in G’s ACGB funded gallery. Under the scheme, ACGB should fund G to give A his public exhibition payment. But A is not involved in the exhibition and may not even know he is entitled to receive payment. This gives rise to two problems. First, how to ensure that G pays A. This could only be achieved if ACGB’s written funding agreement required G to pay A, and by ACGB enforcing that requirement for the artist. Second, how to find A in order to pay him. This could be achieved if A’s contract of sale with C required C to notify A of all public exhibitions of the work, and that A’and C keep in touch with each other – but only if they both did so. In this way, ACGB and G could discover A’s whereabouts from C. However, if there were a national registry of artists to which payment could be made by G, it would be in A’s interests to maintain his registration in order to collect his payment; ACGB could also use the registry to monitor G’s payment.

The desirability of all artists and administrators using written agreements when conducting their ordinary business affairs is obvious, and has been urged numerous times in this column. Written exhibition agreements (and contracts of sale) are essential ingredients of any voluntary scheme of public exhibition payments, not only to administer and enforce the scheme successfully, but also to distinguish such payments clearly from any other financial arrangements concerning the exhibition. Indeed, the Working Party’s paper specifically recommends that all exhibition agreements should be regulated by written contract.

In the next issue, gallery agreements (held over from November) will be dealt with.

© Henry Lydiate 1978

 

 

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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.