Negotiation

Artists' Rights

Many activities, not creative in themselves, are necessary for artists. This is especially true once your work leaves the studio. Examples of such activities include exhibiting, negotiating reproductions of images, selling, being commissioned, and paying taxes. You may find these provide you with varying experiences of satisfac tion or distress.
When someone else's use of your art does not work out favourably, you may react emotionally, out of feelings of pressure or fear. Or, if you have thought in advance of your role and rights as a creator, you may instead be able to take appropriate steps to see that your art work is used in the way that seems most appropriate to you.

CARFAC believes that the artist is the best spokesperson for him or herself. However, the artist needs enough information about artists' rights and responsibilities to be able to direct his or her own career. Therefore CARFAC works with users of artwork to ensure fair treatment. And CARFAC works with artists to encourage self-determination.

Basic principles: When you, the artist, are considering the use of your work, it is important to remember that you are the one who has the right to decide what happens to it. Gather together the information you will need to enable you to make decisions about use of your work from a basis of knowledge.

Negotiation: Whenever you discuss your work with a potential user, you are negotiating. Negotiation is a process of coming to an agreement with a user or purchaser of an artwork, or with someone else who has possible input into your artistic career. It is not necessarily an adversarial process.

Rights in negotiation: In negotiations, you have certain rights. These include:

  • the right to state what you want and expect.
  • the right to hear the other party's requests and expectations.
  • the right to ask for clarification at any point.
  • the right to refuse or accept any request. Negotiations may or may not proceed further. An agreement satisfactory to both parties may or may not be concluded.
  • the right to compromise, if it seems acceptable to you.
  • the right to decide to conclude with either agreement or disagreement.
  • the right to get professional assistance, perhaps from a lawyer, a financial expert, CARFAC SASK, or any other appropriate party.
  • When negotiations fail: When you are unable to accept terms offered by potential iser of your art and the user is unwilling to change them, negotiations stall. You may find at that point that you are under pressure to reconsider or rescind. Most artists have been or will be in this situation at some time.

Pressure situations: Possible occasions for feelings of being pressured may include:

  • your participation in an exhibition.
  • your participation in an art auction.
  • use of your artwork in association with some campaign or product.
  • use of your artwork as a commodity.
  • a request of you to assign all or part of copyright.
  • request of you to pay a fee or commission, whether or not a service has been rendered to you.
  • a demand of you to agree to all terms of a contract rather than some or none.

Pressure applied: There are many ways that pressure can be put on the artist. Among them are:

  • friendly persuasion. For example; "It would be such a good idea for you to donate some work to this art auction. A lot of people will see it, and it will be good exposure for you."
  • assuming that your and the user's needs are the same. For example: "I really thought a lot more artists would be interested in contributing. This won't look very good. I'm only asking you for one painting. Are you sure you can't take part?"
  • moral pressure. For example: "We really need you to donate some work. It's such a good cause, and if we don't have your participation we won't do as well, and it's for the children."
  • statements that you are being unreasonable. For example: "All the other artists are doing it, and some of them are a lot better known than you. I don't see why you're the only one who won't."
  • possible loss of a sale or exhibition opportunity.
  • threats ("If you don't do what I want, you will be sorry...").

Pressure resisted: If you are under pressure for any reason with regard to your art, remember that you have rights. These rights are the same whether the pressure comes from a dealer, a curator, a commissioner, or any other user. Your rights as an artist include:

  • the right to understand what use of the artwork is being proposed.
  • the right to have your art used in ways you find appropriate.
  • the right to state a point of view.
  • the right to propose alternatives if you think there are some.
  • the right to terminate the discussion, either temporarily or permanently.
  • the right to say no, even though you understand that the pressure may follow through on threats.
  • the right to say yes, even if under better circumstances you would prefer not to.
  • the right to professional assistance.

Getting professional assistance: CARFAC SASK operates programs that provide professional advice to artists on legal and financial matters. These are available to members without charge. Your concerns may include use of work, contracts, copyright, legal remedies, accounting, income tax and GST. Contact CARFAC SASK for further information about the Legal Advisory Service or Financial Advisory Service programs.

In summary

Non-creative activities related to the use of artwork are necessary for most artists. These activities can lead to pressure situations. Your reactions to pressure may be emotional or rational, depending on the knowledge you have about the situation. Get the information you need to to help you react from a basis of knowledge. No matter what kind of pressure is involved, you as an artist have rights. One of the most important is the right to get professional assistance.

(CARFAC SASK SASKATCHEWAN VISUAL ARTS HANDBOOK 7th edition)