When Jackson Pollock signed his first contract with collector and dealer Peggy Guggenheim in 1943, he was able to quit his job decorating ties to concentrate on painting. That first contract paid him a stipend of $150 per month, with guaranteed sales of $2,700 annually (if there were less than $2,700 in sales, Guggenheim would be paid the difference in paintings). His second contract with her two years later raised the stipend to $300 per month and gave Guggenheim ownership of Pollock’s entire artistic output for the year with the exception of one painting that the artist could retain. The terms of those contracts might not satisfy artists nowadays, but it was beneficial to both Pollock and Guggenheim then, reflecting her trust in his talents and allowing him to work unencumbered by financial constraints. This was a true partnership.
Relationships are what bring artists and dealers together, and these relationships (artist-collector or dealer-collector) help to sell works of art. Artists and dealers often have both personal and professional relationships, but when dealing with the business end of things, both sides do need to be clear as to the nature of their interactions. How often and in what context will the artist’s work be displayed? What sales commission will be paid to the dealer? How soon will an artist be paid following a sale? Who pays for framing, shipping, advertising, insurance, catalogues? Is the dealer an exclusive agent for the artist? How long will this agreement be in effect? Tacit understandings and handshakes must give way to sometimes lengthy conversations and even legal contracts that detail how artist and dealer will work with one another.
A written contract does not solve any of the problems that may arise between an artist and a dealer, but it clarifies the nature of their relationship and possibly offers a mechanism by which disputes can be settled amicably. A good contract is dependent upon a sound understanding of the pertinent law and what both artist and dealer are looking to do. In the ever-insecure world of the arts, there are endless opportunities for tensions to arise between artists and dealers; part of those tensions result from the fact that each side needs the other (one to produce, the other to sell). That need should be the basis not of ongoing antagonism but of a partnership, enabling artists to grow creatively within the relationship and earn money from the sale of their work.
One of the most frequently asked questions is whether the use of another artist’s imagery is an infringement of copyright. In particular, illustrators often maintain files of images to fulfill assignments with deadlines too short to permit contacting anyone for permissions. The names for these files—the sedate “reference” file, the offhand “scrap” file or the larcenous “swipe” file—suggest the ambiguity felt when using such imagery. After all, the people who made that imagery are also artists and copyright proprietors like the illustrator who wants to use it. Increasingly, illustrators looking for references can casually download such artwork from the Internet and use powerful digital imaging tools to seamlessly incorporate referenced pieces into their own work. In this increasingly digitized artistic universe, understanding the scope of an artist’s copyright becomes especially important to the modern artist.
An artist suing another for infringement has to prove that an ordinary person would be able to tell his work was copied. The artist can then secure money damages unless the copying was trivial or insubstantial, or it was a “fair use.”
“Krajobraz Karakorum (03)” Photo by: Hons084 / Wikimedia Commons. Licensed under CC BY-SA 4.0 via Wikimedia Commons
Digitally created images derive from prior techniques, yet offer the power to meld and manipulate images that bring the very truth of those images into question. Unlike fine art, in which the brush stroke may establish uniqueness and, therefore, value, the digital image exists in a different construct and can be infinitely reproduced without any generational loss of image quality. Certainly the digital world is a more hospitable environment for copying than the world of the brush stroke or even the transparency. In fact, the truth of the image is so vulnerable to manipulation that some advocates for ethical practices have proposed what amount to labeling requirements that would disclose when work has been altered. Of course, infringers would ignore such disclosure requirements in the same way that they ignore the boundaries set by the copyright law with respect to copying. Implicit in all this is the power of the computer to take existing images and change them beyond recognition.
So the digital image not only eliminates originality in the sense of physical uniqueness (since the art can be reproduced an infinite number of times without any generational loss of image quality), but it also challenges the concept of the individual creator’s originality as the memory of the computer holds more and more appropriated imagery.
Appropriation art is a postmodern theme. Some gallery artists gain fame by appropriating the images, and sometimes the life styles, of their famous, painterly predecessors. Is appropriation the proper response to consumerism and the money excesses of the art world? Is this an attitude that has perhaps gained wider acceptance than we might imagine? Is the easy taking of the appropriation artist being paralleled by the budget-conscious behavior of corporations whose bottom-line concerns are paramount? The answers to these questions will become apparent with the passage of time. For now, we can only emphasize that infringement is unlawful and unethical. Artists must do whatever they can to protect their images and ensure that appropriation, in whatever guise, is not allowed to become an artistic norm.