In rechtReeKs, the Kunstenbond, the union for artists and everyone who works in the cultural and creative sector, takes a close look at a legal topic that is essential to the artist's professional practice. Lawyer Jet Hootsmans provides insight and practical tips. This time what you need to know about copyright when you collaborate with others to create a work of art.
Community Art, Socially engaged art, interventional art, collaborative art practices, the terms pile up. Yet they all describe the same premise. The artist who leaves the studio, involves others, and together creates something that would never have been there otherwise. I call it participation art.
Suppose you receive a municipal commission. The municipality wants a work of art that “makes visible the diversity and resilience of the neighborhood” as part of a larger urban renewal plan. You work with residents for three months, organizing workshops, collecting stories, photos and drawings. You incorporate all this into an installation that is placed in the new district office. An artist proudly told me about this participation project.
That woman's drawing, that man's story, the photo someone brought, whose is that really?
The process felt good. People participated enthusiastically. And yet the artist had an uneasy feeling. Halfway through our conversation, she asked almost casually, “But I'm allowed to use those drawings, aren't I?” That woman's drawing, that man's story, the photograph someone brought in, whose is it anyway?
Anyone who makes an original creative contribution basically has copyright to that work. This also applies to the local resident who makes a drawing during your workshop. You therefore need permission to use other people's work in your own. But if someone knowingly participates in a workshop, knows that a work of art will be made from it, and enthusiastically contributes to it, you can in principle assume that that person approves. This is called an implicit license, permission that is not expressed but follows from the situation. Crucially, this license only works if the participants knew in advance what they were participating for. Those who were taken by a neighbor or did not actually fully understand what would happen to their drawing did not give that permission.
You catch this by making sure that the intent of the project is clear from the beginning, namely by indicating this in the invitation, call or announcement. A participation form is the simplest step. Not as a formality, but as part of the project itself. In it you explain what you plan to do: what will happen with the contributions and where the result will be placed. Ask participants to agree to this in writing.
Crucially, this license only works if participants knew in advance what they were participating for.
An accessible text that you can also design works well. It makes expectations real and prevents participants from feeling that they have been passed over or that money is being made over their backs. After all, that's where problems can arise from. As an artist, it also gives you the freedom to create work without the feeling that you've taken something you shouldn't have.
An important point to keep in mind is that permission applies only to the use for which it was given. If your invitation or participation form states that the work will hang in the district office, that does not automatically cover an exhibition in a museum or sale to a collector. If you want to keep all options open, be sure to include this.
The participants have the right to their contribution in themselves, and the artist has the copyright to the artwork she has created from it.
Finally, there is a second copyright not to be forgotten, that of the artist on the installation. And this is just as important. There are two sides to copyright here. The participants have the right to their contribution on themselves, and the artist has the copyright on the work of art she has made from it. This also means that no one, including the participants, can simply modify this work later. Participatory art is collaborative, but if there is a final work, it is yours.
Call
The Department of Visual Arts of the Kunstenbond has started a working group Participation Art to investigate the state of affairs in this increasingly common field of work. What is the situation with the remuneration of this type of project and does it succeed in maintaining artistic autonomy in commissioning situations? What is going well, what could be better? Would you like to participate, would you like to share your experiences, or do you have another idea or comment? Send an email to info@kunstenbond.nl
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