Is the regulation of art an oxymoron? Listening recently to the opining of art critic John McDonald seemed to me as though he wanted the artworld to stay the way it was in the good old days of C19th Europe.
McDonald was responding to a talk on ‘Legal Perspectives on Dealing with Art and Objects of Cultural Heritage’ by Professor Deborah A DeMott, visiting from the US Duke University. Speaking at the University of Sydney’s Law School, Professor DeMott was exploring the complex role of the intermediary in art dealings mainly during the period of the Impressionists and Postimpressionists.
In his response, McDonald made a comparison with similar issues in the contemporary Australian artworld. He roundly criticized the forthcoming resale royalty right though he acknowledged that it could be a way of exposing the nefarious practices of some dealers and auction houses in ‘ramping up’ the prices of artworks or laundering ill-gotten financial gains. He scoffed at the idea of artists using a scale of minimum fees to negotiate reasonable payment for their services. He seemed to be of the opinion that mechanisms like contracts or the use of trust accounts by dealers were too prescriptive and that the ways of the C19th were good enough then and were equally OK now. He seemed to be deeply sceptical of any form of industry standards that might be adopted to try to regulate relations between artists and those with whom they have commercial dealings. He proposed that it should be all about relationships of trust, and certainly most of us would agree that trust is desirable.
However, sadly the experience of many artists and sometimes dealers, points to a different environment in the C21st marketplace for cultural goods and services. Seeing relationships come unstuck many times, sometimes spectacularly, was the motivation for the National Association for the Visual Arts (NAVA) in 2001 to undertake extensive research with academic partners to publish the first edition of a set of best practice standards for the visual arts industry. NAVA was then, and is even more so now of the opinion that most art dealings are similar enough to other areas of economic activity to be able to cope with a degree of written agreement and/or regulation. To this end NAVA is about to publish the 3rd much updated edition of the Code of Practice for the Professional Australian Visual Arts, Craft and Design Sector.
At the recent Garma Festival, Robyn Archer had a bob both ways. She said, “It’s dangerous to refer to creative industry and include art. Art is unprofitable, haphazard, unlike anything we have as an industry. It’s about valuing the ephemeral. That said, it’s true that the economic bottom line is figuring large in all art.”
In the visual arts, the outcomes of art practice are not ephemeral in the same way as the performing arts, and its economic bottom line is worthy of examination. If an artist is commissioned to produce a piece of work at someone else’s behest, is it outside the realm of imagining that they could charge a fee for service according to some agreed standard within the sector for someone of their level of skill and experience? Shouldn’t visual artists have the same entitlement to payment of royalties as an author or composer and be attributed as the originator of a work of art? Why shouldn’t artists be able to claim the costs of professional art practice for income tax purposes on a par with the legal entitlement enjoyed by most other producers of goods and services? While at times art making can be unprofitable, haphazard or feral in intent, nevertheless there is a plethora of businesses and an industry built on this practice which accommodates and sometimes adds value to the work of art practitioners so they can turn a profit. Though it is hard to put one’s finger on the exact nature of how art is valued by the community, the marketplace does provide some measures, even if they lag behind what is happening in the present.
Many younger art practitioners can be quite pragmatic about what they are doing and have expectations to be appropriately respected and paid like any other professional, consultant or person operating a small business enterprise. Since the establishment of art industry standards in a variety of forms, they are increasingly being used as checklists and negotiation tools by people on both sides of a transaction in trying to achieve fair dealing. Perhaps both trust and regulation - carrot and stick - are necessary conditions of the C21st art marketplace.
