Artists' Rights and the Creative Economy

In the early 70s, Robert Projansky and Seth Siegelaub met and published a document titled The Artist’s Reserved Rights Transfer and Sale Agreement (The Contract) as a means to address and “remedy some generally acknowledged inequities in the art world…” Specifically, the document addressed several issues that the pair saw as requiring mending: resale royalties, records of ownership, the right to have the work remain unaltered, the right to be notified when the work is exhibited, the right to show the work for two months every five years (at no cost to the owner), the right to be consulted on restoration, a share of any rental income, and all reproduction rights. (Projansky and Siegelaub 1971)

When they completed this process, which admittedly involved a fairly quick turnaround, the pair printed and distributed the document as widely as possible, having it translated into several other languages and distributing it across Europe in addition to their home country of the United States. Unfortunately, the eagerness with which the two created and spread the document was not matched by the audience it was intended to benefit. 

While some artists appreciated the gesture and effort to right these inequities, many others held issue with the idea of profit-sharing. This is not necessarily surprising when you consider the ways in which we value art (which shall be discussed shortly), but it is an interesting space to explore when discussing the rights of artists. How do we value art, and how does this affect the rights of artists? Do artists deserve rights? If so, what are those rights? What role do artists play in arts organizations? How are they viewed in the “creative economy?”

How We Value Art

To begin the discussion of how we value art, we must first agree that, at some level, art is a commodity. (I feel so much closer to you now that we’ve agreed on this.) An artwork assumes the role and characteristics of a commodity as soon as it hits the market and begins to circulate. However, the art world largely agrees that while art assumes the role of a commodity, it is a commodity unlike any other. The logic behind this sentiment centers around the idea of the art world as a knowledge-based economy. 

In her book High Price: Art Between the Market and Celebrity Culture, Isabelle Graw states that through the addition of knowledge and information “…increased importance would once more be accorded to the symbolic meaning bestowed upon an artwork, its symbolic value.” (Graw 2009) This is to say that art occupies two forms of value: market value and symbolic value. Art never solely occupies one of these modes, though. While these two ideas might seem polar opposites, one does not necessarily negate the other. In fact, within the specialness of an artwork, these forms of value intertwine and commingle. At times, the relationship is symbiotic, but it can also be parasitic. The graph below attempts to illustrate this point. 

The modes of symbolic and market value intersect at 0 (the x,y axis), creating a field that anartwork can occupy. An increase in symbolic value might increase the work’s market value, but this is not necessarily a given. Likewise, a work of art can have a very high market value while maintaining a low symbolic value. As I wrote earlier this year in paper titled Art as Commerce: Art and Value, “[These two values] might twist together, pull away from one another, or elevate one another, but the relationship is constant so long as it circulates in the economy.” (McFadden 2016)

For decades, the art world has largely remained an informal economic system, unregulated by an overseeing third party (be it governmental or institutional). In his 1978 article “Blue Chip Sublime,” Robert Hughes used the story of Mark Rothko’s death as a platform to discuss the manipulation that goes on behind the scenes of the art world. He focused on the posthumous sale of the artist’s work by his galleries and discussed the ways in which the art market tends to function in the United States. “Professions are, in essence, self-regulating. They have strict codes of conduct and ethics. Their willingness to stick by these codes, enforce them on errant members and expel impenitent ones is what distinguishes professions from trades. But there is no agreement in the American art world on how critics, museum curators or dealers should behave.” (Hughes 1978)

Oftentimes it is argued that art’s specialness (the specialness that makes it a commodity unlike any other) separates it from the market. Regulation might shatter its symbolic value and send that specialness into some inescapable void. The argument here is that regulation is frightening, but regulation is just a word, and words are tools. We use tools to construct and deconstruct. When we use the word “regulation” to construct parameters that engage the symbolic value of a work of art, nothing must be sent to the void except for that argument. 

As mentioned before, The Contract penned by Projansky and Siegelaub recognized these inequities and presented a means of establishing them on an individual level. The ideas that they included in the document are not new but adjustments made to laws that exist outside of the United States. The agreement that this pair created was drafted within the context of US common law. Maria Eichhorn explored The Contract fairly deeply in her book The Artist’s Contract, and introduced this context by saying “Historically, Anglo-American common does not provide strong protection to authors and artists for safeguarding immaterial rights of authorship, independently of copyright provisions the law of contract.” (Eichhorn 2009)

This is less true in other countries, where works of art are protected under civil law. Projansky and Siegelaub were aware of this and thus created their agreement to function contextually under common law, looking to European civil law, which recognizes droit d’auteur (the moral rights of authorship). As Eichhorn stated, these laws don’t have no historic context within Anglo-American common law and didn’t until the late 80s and early 90s, which saw the Copyright, Designs and Patents Act 1988 come about in the United Kingdom and the Visual Artists Rights Act of 1990 in the US. 

Some believe that The Contract influenced the formation of the Visual Artists Rights Act, which may be true because Robert Projansky did in fact speak before Congress when the act was under discussion. Still, the act focuses mainly on the integrity of an artwork, restricting outside censorship or adjustment, and makes no attempt to address the economics of the work or the artist’s rights regarding copyright and reproduction. To date, California is the only state that recognizes resale royalties for visual artists, passing the California Resale Royalty Act, and this law is strictly limited to transactions that occur within the state’s borders. 

When there is so little done to protect the work and labor of visual artists, it calls into question whether artists deserve rights. Let us explore this. 

Do Artists Deserve Rights? 

Within a liberal echo chamber, the immediate response seems to be “Yes, of course. Artists are people, and people deserve rights. No, people have rights, especially pertaining to labor.” This is a beautiful sentiment, and it would be lovely to conclude this section with such brevity. However, the previous section detailed the lack of recognition and subsequent lack of protection of these rights by a governing body. With this in mind, we must consider the underlying complexities of artists’ rights as birthed by the overt complexity of the value system with which we engage artists and their work.

In the summer of 2016, I organized an exhibition titled aesthetic][equity in the hallway space at Art League Houston. The exhibition addressed the socioeconomic situation of the artist, both specifically in Houston and within the larger art world, and presented two attempts to bridge the gap between art and equity: The Contract and Time/Bank, a project by e-flux that sought to replace currency with a time-based exchange built upon the idea of the artistic community working together. I cite this exhibition as grounds to reference a review of the show written by Michael Bise. 

The review appeared in Glasstire, an online platform for regional art writing. As he wrote about the exhibition, Bise made interesting comments that expose a barrier to establishing artist’s rights - artists themselves. “In order to accept any of the projects and proposals in aesthetic][equity you must first accept the premise that artists deserve to make a living making art,” he writes. “They don’t. This world is one of toil and trouble.” (Bise 2016) Bise, an artist himself, represents an interesting space in the dialogue of art, value, and regulation. He goes on to write about the idea of regulation being terrified. Again, regulation is a tool, and tools are used in a variety of ways, so regulation need not be feared but used to carefully construct parameters. Bise addresses the situation of artists having to work multiple, low-paying jobs in order to support their artistic endeavors.  

Some people weld iron girders together at high noon in the deadly Texas sun. Others lay asphalt or work in convenience stores or change old people’s diapers. These same people also express themselves creatively in redneck honky-tonks, sparkling Latino dancehall and pulsing hip-hop clubs. They create sexy, outrageous fashion from Salvation Army cast-offs. They write. They draw. They cook. Nobody grants them the “right” to do it and they don’t get paid for it. (Bise 2016)

Bise argues that creative expression is not a right. I would disagree, contending that creative expression is a right granted by a generally accepted sense of freedom. The freedom to express oneself is a right granted in the Constitution of the United States under the freedom of speech. But Bise is ranting in his review and does not fully intend to get into an argument of the right to express oneself creatively. Instead his intent is to make a quick, shaky point that visual artists don’t deserve more rights than those who express themselves outside of the art world or the art market. However, his argument falls apart in his examples. When he lists a handful of creative endeavors (fashion, writing, drawing, cooking), he lists forms of expression that double as careers in other fields. People write, as I do for Arts + Culture TX and as Michael Bise does for Glasstire, and receive pay that is hopefully equitable. People draw and receive payments when they illustrate books or television shows. People design and create pieces of fashion, whether from recycled clothes or new cloth, selling them to others. Yet, when a visual artist desires equity, it is met with confusion, frustration, and a series of philosophical diatribes. 

The economic aspects of a work of art also seemed to be a dividing factor for many artists when it came to use of The Contract. While there are clear examples of artist’s rights in other countries,  the presentation of this idea in the form of an agreement was seen as a barrier to sales and sparked debate about profit-sharing. In her book, Maria Eichhorn interviewed several artists who refused to use the contract because it delved into the economics of the art. Lawrence Weiner is one such artist. Eichhorn interviewed Weiner twice, and in their first, brief interview, he simply states “When a work is purchased, the purchaser receives the work.” He also states “Artistic control is a human rights issue. Exploitation against the wishes of an artist or an artist’s estate should be against the law (even when the exploiter is another artist) (e.g. appropriation).” (Eichhorn 2009)

Between these two statements he presents the contradiction at the core of the complexity of the economic treatment of artwork. Weiner is staunchly against profit-sharing because he, as expressed in a later interview with Eichhorn, doesn’t believe that change in the market value of a work of art should be reflected in royalties during resale. He compares an artwork to an automobile, saying that when you buy a car and sell it, the company that manufactured the vehicle doesn’t reimburse you for the loss. Likewise, when you alter the vehicle, improve it in some capacity, you do not owe the company a share of any profit you make from selling it. 

However, he does believe, as he states, that artists do have rights in regards to the control of their creations. Artists create objects, performances, etc. that qualify as intellectual property, and these creations should be protected by the law to stave off appropriation or false reproductions. People have the right to express themselves creativity, and when the product of this labor is presented in the context of a career, they deserve protection by a governing body similar to those laws that protect other careers. While the specific rights that artists deserve may remain under debate, particularly in reference to their economic aspects, it is safe to conclude that they do indeed deserve certain rights. How, though, does this career function within the context of an arts organization? And how does that career function within the context of the “creative economy?”

The Artist in Arts Organizations and the Creative Economy

In the context of their careers and individual practices, artists are not considered employees when they present their work, whether commissioned or exhibited, at an arts organization (This phrase covers a range of organizations, including but not limited to non-profit art spaces, museums, and galleries.). Within the financial structure of these organizations, they tend to be listed as contract workers (sole proprietors who must submit a W-9 IRS form to receive payment). In this way, the artist functions much like a freelancer or a small business, and this is how artists tend to be viewed within the context of a creative economy. 

The “creative economy” is a concept developed by John Howkins in 2001. It has typically been used to describe “economic systems where value is based on novel imaginative qualities rather than the traditional resources of land, labour and capital.” (Howkins 2001) Relative to a creative industry, the concept of the creative economy expands creativity throughout the whole of an economy. 

The topic of the creative economy was presented at the Arts Leadership Summit held in the spring of 2016 at the University of Houston. The summit consisted of a series of presentations and panels discussing the economy and potential impact of investment by the City in developing and promoting a creative economy. The overall discussion centered on the idea that embracing and investing in this concept would bring more money into the city and provide artists with jobs in newly formed creative sectors. However, while more money is a generally pleasant idea, a creative economy does little, if anything at all, to address the rights of artists. Instead, it applies trickle down economics to both arts organizations and artists: More money at the top will trickle down to the artists and organizations, allowing them to flourish (somehow). The implication within this concept is that artists don’t necessarily have careers as artists but do have transferrable skills developed within their practices that make them employable in creative industries. 

The examples of creative industries provided at the summit ranged from stylish luggage designed by a pair of women in Minnesota to Robert Hodge, a successful visual artist who supports his practice through a piecemeal strategy (often seen in the arts) of commercial sales, exhibitions, and residencies. Hodge is a unique player in the art world, though, because his artistic practice includes the production distribution of music albums. While he is heavily tied to the art world, he is not entirely different from the artists that Bise referenced in his review. He still works multiple jobs to support his practice. While the creative economy is indeed a positive injection in a community, the role and career of the artist functions much the same, perhaps with slightly more recognition. 

Bibliography

Bise, Michael. (2016) Michael McFadden at Art League Houston. Glasstire.  http://glasstire.com/2016/08/15/michael-mcfadden-at-art-league-houston/ Accessed 03 November 2016. 

Eichhorn, Maria. (2009) The Artist’s Contract. Verlag der Buchhandlung Walther König, Köln.

Howkins, John. (2001, 2nd Edition, 2013), Penguin UK. The Creative Economy: How People Make Money from Ideas

Hughes, Robert. (1978) “Blue Chip Sublime.” The New York Review of Books.

Projansky, Robert and Seigelaub, Seth. (1971) “The Artist’s Reserved Rights Transfer and Sale Agreement”