Legal Basics – What To Think About When Producing And Distributing Art
Disclaimer: The content in this section has been provided for informational purposes only and not for the purpose of providing legal or employment advice. It should not be used as a substitute for specific legal advice or opinions. You should contact your lawyer to obtain advice with respect to any particular legal issue or problem.
Sometimes the last thing you want to think about is the legal stuff. You may have already expended all of the blood, sweat and tears that you can muster when getting your project off the ground, submitting a proposal for an open call or dealing with a gallery which wants to exhibit your work. You might think to yourself: what’s the risk, really? Isn’t this a simple case of spending money which you don’t have? And who knows what a covenant is anyway? Well, here’s hoping you will be able to sleep a little easier after reading through this checklist of questions, which you can use when you produce and distribute your art. It includes suggested resources which you can consult for more information. You may notice that many of the questions relate to contracts.
If you don’t have the time to make or deal with fancy legal contracts, at the bare minimum you should make sure that all of your communications are clearly documented. Never leave discussions about your, or someone else’s, rights and obligations as pure oral communications. It’s certainly OK to conduct discussions about legal issues in person, over Skype and on the phone, but make sure you immediately send everyone involved a follow-up email which records the main outcomes of the discussion. If you don’t make this effort, it may lead to miscommunications and disagreements over who promised to do what down the track. This is an easy strategy which will save you on many occasions.
PRODUCTION QUESTIONS
How can I protect my work from being used by other people in ways which I don’t want?
Intellectual property (IP) is the answer for you. You should think first about copyright. You should think also about your moral rights and other areas of IP that might be relevant too, such as trademarks, patents and design.
The UK government has an Intellectual Property Office and its website, www.ipo.gov.uk contains plenty of information about what constitutes intellectual property, and about other protections such as moral rights, performers’ rights, the publication right and the database right, as well as how you can register your trademarks, patents and designs.
For suggestions on how to maximize your IP, have a read of this IP strategy pamphlet written by the City Enterprise Service: http://www.city.ac.uk/__data/assets/pdf_file/0004/133933/Intellectual-Property-Strategy.pdf
Someone has asked to use an image of my work. Should I say yes?
While this may sound obvious, you should probably find out exactly what the person intends to do with the image before you give permission to use it. When you permit someone to use your IP, this is usually called an assignment or a license. The best way to make sure that people use your IP in a way which you are comfortable with, is to ask them to sign an IP licensing or assignment contract.
You can find contract templates relating to IP at http://www.own-it.org/contracts and at http://www.contractstore.com.
I want to use an image I have found online. Do I need to ask for permission? Don’t forget that someone else might have copyright or other IP rights in that image. Asking for permission is an easy and efficient way to avoid what could potentially be an infringement of someone else’s legal rights.
There are some situations in which you might not need to ask for permission. You can find more information about this on the UK IPO website (referred to above), by reading Own It’s Guide to IP Rights, which is at http://www.own-it.org/knowledge/the-ip-guide-to-visual-art and the articles on using other artists’ work at http://www.artquest.org.uk/articles/view/using-other-artists-work.
I am being commissioned to create a new work. Do I need to sign the commissioning contract I’ve been given?
It is in your best interests to sign a commissioning contract. But that doesn’t mean that you should necessarily sign the document you have been given, especially if you don’t agree with everything in it.
Don’t be fooled into thinking that there is such a thing as a standard contract which cannot be changed before you sign up to it. There isn’t. You always have the right, just as much as any other person signing the contract, to change it, or remove something or insert something different.
Asking yourself the question: “who needs who more?” will be a good indicator of assessing your negotiating power and therefore your ability to amend the drafting of the contract.
For a step-by-step guide on commissioning contemporary art with more information on the legal aspects, have a read of the book Commissioning Contemporary Art: A Handbook for Curators, Collectors and Artists by Louisa Buck and Daniel McClean.
You can find a template commissioning contract here: http://www.artquest.org.uk/articles/view/commissioning-an-artist1
DISTRIBUTION QUESTIONS
A gallery wants to show my work. What kind of contract should I sign? The type of contract you should sign with a gallery depends on what the gallery is offering you. If the gallery wants to represent you, then you should sign a Gallery Agreement. You can find more information on what a Gallery Agreement should include here: http://www.artquest.org.uk/articles/view/gallery-agreements1
If the Gallery wants to sell a work of yours on your behalf, which is in an exhibition of theirs, then you should sign a Consignment Agreement. You can find a template Consignment Agreement here: http://www.artquest.org.uk/articles/view/contracts-with-galleries1
If the Gallery does not intend to sell your work or represent you, but wants to include your work in a one-off exhibition, you should still sign a contract where you agree to the terms of the arrangement. You can find a template for an Exhibition Agreement here: http://www.artquest.org.uk/articles/view/exhibition-agreements1
A collector wants to buy my work directly. What should I make sure is in the contract of sale?
This depends on what your concerns are. For example:
- Do you want to ensure that the buyer takes proper care of the work?
- Do you want to have a say on how and where the buyer agrees to exhibit the work?
- Do you want to be able to make more editions of the work without asking the buyer?
- Are you concerned about the risks of transporting and insuring the work?
You shouldn’t just discuss your concerns with the buyer at the point of sale. You should make sure that you come to an agreement with the buyer about each of your terms and record these terms in a written contract signed by you and the buyer.
One of the classic templates for a contract of sale between an artist and a buyer is The Artist’s Reserved Rights Transfer and Sale Agreement. You can get a copy of it here: http://primaryinformation.org/files/english.pdf
I want to submit my work to a Call for Entries, but there’s a bunch of terms and conditions they’ve asked me to sign. Do I need to sign them? When you agree to terms and conditions, you are essentially signing a contract. This means that if you break terms and conditions that you have agreed to, there can be serious consequences. Generally, the terms and conditions will list what those consequences are, so read them!
The Bill of Rights for Artists campaign provides information on artists’ rights in relation to works they submit to creative competitions, including licensing work for use by the competition organisers. See http://artists-bill-of-rights.org
Do I need to be registered as self-employed if I am selling my artwork?
In the UK, if you are selling your art then you need to register as being self-employed. By selling your work you are trading and therefore you are responsible for paying your own income tax.
You can find information about how to register for self-employment, as well as other icky tax stuff like VAT, National Insurance, importing and exporting, on the HM Revenue & Customs website, http://www.hmrc.gov.uk
Artquest also has a number of articles on how to make a living at http://www.artquest.org.uk/articles/view/money5
Alana Kushnir is a freelance curator and researcher who has recently graduated from Goldsmiths, University of London with an MFA in Curating. Prior to this, she was a practising lawyer.
FURTHER ADVICE
Unfortunately, this checklist is by no means definitive, nor does it touch upon many legal issues which you should consider in any given circumstance. You may still need to get legal advice which addresses your particular situation. Luckily, it might be possible for you to get free legal advice on art-related issues.
Some organisations which may be able to help you are: Artlaw provides free online legal advice and information service for visual artists who live and work in England. www.artquest.org.uk/articles/view/art_and_the_law Queen Mary Legal Advice Centre, part of the University of London, provides free in-person legal advice to people working in the creative industries once a month during term time. www.advicecentre.law.qmul.ac.uk/arts/index.html City Enterprise Service, part of City University London, is a free walk-in centre that offers business and legal assistance to small businesses. www.city.ac.uk/law/careers/pro-bono-professional/information-for-clients/city-enterprise-services Lawyers Volunteering for the Arts is a pro bono legal project set up by a group of London-based law firms offering free legal services to low income and non-profit arts and community organisations. http://lvfa.org.uk Free Law Direct, a free online legal advice service which provides access to volunteer lawyers for charities and non-profit organisations. http://freelawdirect.org.uk Own-It, funded by the University of the Arts London, provides intellectual property advice through an online enquiries system. http://www.own-it.org DACS Copyright Advice Service provides over-the-phone advice for artists and beneficiaries signed up to their
Copyright
Licensing and Artist’s Resale Right services. http://www.dacs.org.uk
“Let’s build an artworld in the image of the hairdresser. The hairdresser attacks the way things are. The hairdresser ploughs through facts with the not-yet. The hairdresser scours reality with alternatives. The hairdresser makes systematic mercenary war on what in fact is. This is why even the most perfectionist hairdresser is ultimately on the side of wildness. The hairdresser trims individualistic and indisciplined growths into unified planned wholes and truth bearing events.” — Freee, 2010 Excerpt from Eastside Projects User’s Manual: Draft 5, 2012
Courtesy Janice Macaulay. Photograph by Betty Borthwick.