Art collectors and copyright injustices
It’s become fashionable for very wealthy patrons of the visual arts to share their extensive private collections by publishing glossy coffee table books lush with images of the artworks usually only seen by privileged visitors to the collector’s private home.
At the other end of the spectrum, it’s increasingly common for public institutions to create digital archives of the art in their collections, both as a management system and, in many cases, as a public resource for researchers, art historians, schools and the general public. Often such institutions also use images of the works in their collections on merchandise for sale in their gallery or museum shop and in books sold both in their own shops and elsewhere.
All these projects have the capacity to enrich the public’s understanding and appreciation of the arts, give the artists exposure that can benefit their reputations and create a valuable record of the creative output of Australia’s artistic community.
Such projects, whether the collection is public or private, have in common the employment of a number of people to assist in design and development. The private collector invariably retains the services of a professional photographer to capture the beauty and integrity of each artwork, researchers to collate provenance, bibliographic and other data, an art consultant to advise on selection and curation and to author a learned introduction, editors for the accompanying text, graphic designers, a printer and publisher. The public gallery or museum also employs photographers, researchers, possibly a graphic or website designer, maybe a software engineer or programmer and a digital database manager. In common, the individuals or businesses providing these services are paid wages or commissions under a contract of service or employment at a fair rate.
Disappointingly, such enterprises often also have in common a failure to place any value on the right of the artists to be compensated for the use of their copyright. After the first sale of the physical work, often many years earlier, copyright is the single most important means for artists to generate economic value from their work and a critical means of supporting their ongoing creative practice (and their families), a fact recognized by the copyright laws when it conferred such rights. Copyright is as much an essential part of the artist’s ability to earn a living from creating art as the sale of a physical canvas or artwork. For many elderly artists (particularly Indigenous artists living in the remote parts of Australia) no longer capable of producing the artistic output of their youth, it may be their only source of income – although the new resale royalty also makes some ongoing contribution. By seeking a waiver of copyright fees while paying market rates to the army of other consultants, the collector or public institution is essentially asking the least financially able participants to subsidise the payments made to the others.
There is an argument for affordable or even royalty free digital licences for public institutions wanting to create digital archives for maintenance and preservation purposes. Arts Law, in partnership with the Centre for Media and Communications Law, has developed a best practice licensing agreement for non-commercial reproductions and use by collecting institutions which is available for purchase at www.artslaw.com.au. But such licences should be limited to a strict non-commercial purpose. If the institution wishes to use images of seminal or popular works on museum shop merchandise, in art books for commercial sale or in other promotional materials, best practice requires the artist to be paid fairly.
It is unclear why the artist is often considered to have no valid claim to share in the fruits of his or her labour in this situation. Most artists have made it clear by signing up to Viscopy or another copyright collecting agency that nothing would please them more than to earn a little income from the reproduction of images of their art.
Certainly a payment was made for the purchase of the physical work now gracing the walls of the private collector’s home or the public institution. That payment may have gone to the artist, or possibly to a later owner of the work, and may represent a vastly lower amount than the current market value of the work. If the work has increased dramatically in value, both the collector and institution have benefited – the artist is relying on copyright and resale royalty to extract ongoing value. Resale depends on a commercial resale and, as works held in important collections may be held for long periods of time, is an uncertain income source.
The law makes a clear distinction between the physical artwork and the copyright – and ownership of the former gives no rights to the latter. Each is capable of generating a separate economic return for the artist – the physical artwork by its initial sale (and subsequent sales eligible for the 5% resale royalty) and the copyright by royalties for any reproduction and publication of images of the work. Yet many serious collectors appear to think that by paying for the physical artwork (whether or not any part of that payment went to the artist), the copyright should be thrown in for free! Thankfully this is not a universal approach. The extraordinary collection of Colin and Elizabeth Laverty described by Nicholas Rothwell as ‘the most important private collection of Indigenous art in the country’ was documented in Beyond Sacred, a book included in the top 10 books of 2008 by the Australian Art Market Report, and awarded a Distinction at the Australian Graphic Design Association awards. It was so successful that a second edition was published. Most notably every artist whose work is featured was paid a fair copyright fee.
It is anticipated that Australia’s postponed draft cultural policy will recognise the significance of Australia’s creative industries not only to the cultural life of the nation but as an important source of employment and economic activity with flow on financial benefits to other industries such as tourism. The discussion paper urged greater support to enable artists and other creators to develop economically sustainable practices in the long term. That long term objective would be well served by educating consumers that artists rely on their art to feed their children and should be compensated fairly. The visual artist is often self-employed with irregular income reflected in extended periods of low returns while preparing a sufficient body of work for an exhibition. At such times, artists may count on some income from copyright licensing and resale royalty to tide them over. The philosophical basis of copyright is to recognize the enduring financial value of the artist’s creative output to the artist.
Recently an art consultant (no doubt on a healthy retainer) sent a standard form letter to numerous Aboriginal art centres seeking copyright waivers from a number of artists for a glossy tome showcasing a wealthy individual’s collection. A short time later, a similar request was made by another consultant for a book designed presumably to showcase and promote that consultant’s own career. Both books were intended for commercial sale. No doubt the photographers, art consultants, editors, graphic designers, printers and publishers were paid an appropriate fee. Many of the artists from whom these waivers were sought live in the remotest parts of Australia, don’t own their own homes, and support extended families. Some are elderly and unwell and no longer able to paint. Copyright royalties provide a small welcome supplement to a government pension. These are the artists being asked to subsidise the publishing desires of wealthy individuals who collect art for pleasure and arts writers who know full well the value of copyright as they rely on it to generate their own income. One excuse is that the artist benefits from an enhanced reputation through the publication of such books which logically translates into increased prices and sales. Really? But so too does the collector or institution with the critical eye and means to have assembled the collection in the first place and who has benefited from increases in value.
Recently some Aboriginal artists have begun politely to decline the offer of the positive publicity said to flow from inclusion in such publications which comes at the cost of a copyright waiver. If enough polite refusals are received, the publication may suddenly start to look a little thin highlighting to the authors and institutions involved that getting a copyright licence is valuable and worth paying for. Faced with the prospect of a publication that does not include a representative selection of works, the means to pay a copyright fee can suddenly be found.
The current Viscopy rate for the right to reproduce a member’s artwork in a book to be published in a run of 2000 is $262.90 (including GST) for a 1/4 page interior use and up to $1,008.70 (inc. GST) for a cover use. The rate for reproducing artworks on postcards sold by public collecting institutions is 22 cents per postcard with a minimum of $137.50. This doesn’t seem unreasonable.
It is time for artists and their agents to say no more often. It is time for artists to stop undervaluing or underselling their work because if they don’t, others will also undervalue it and continue to expect the right to reproduce it for free. Copyright is an economic right but if it’s given away for free, its capacity to generate an economic return is diminished. If artists say no, then, like the GST, the cost of copyright will start to be factored in as a legitimate cost of publishing in the art sector. At the moment, nobody loses except the artist.
Delwyn is a senior solicitor and the deputy director of Arts Law.