At this time of global economic downturn, when governments across the world and especially in developed economies are committing vast sums of public money to prevent unemployment, some money is being ear-marked to support artistic endeavour. This piece explores whether there is, or could be, a standard or model approach for engaging artists-in-residence.

Artists' residencies are not unique to the modern era. They were practised long before the development of the art market in recent centuries, and the establishment of today's global trade in artworks as portable commodities with financial value. During the artistic Renaissance in the western world, for example, artists' incomes were derived chiefly from the execution of subject- and site-specific commissions dictated by high net-worth patrons. Some such commissions involved a freelance contract between artist and patron, others involved a contract of employment: either way, artists worked at the patron's specified location and often took up residence there.

In the 17th and 18th centuries, such commissions were substantially reduced, and artists in the main became authors of self-generated works for sale. The turn of the 19th and 20th centuries saw the emergence of artists' residential colonies at, for example, Worpswede near Bremen in Germany (1889), the Woodstock area of New York State (1903), and Dartington in England (1925).

In 1935 the US Government established the Federal Art Project (FAP), which was the visual element of the second of President Franklin D Roosevelt's New Deals aimed at tackling unemployment in the Depression era. Operating until 1943, FAP employed artists and paid them a basic wage to produce artworks (around 200,000 in all) for public institutions such as schools, libraries and hospitals; notably including Lee Krasner, Jackson Pollock , Mark Rothko and Willem de Kooning.

The 1960s and 70s saw the development of further residency schemes: artists were engaged to work in public institutions (such as schools, hospitals, prisons, places of religious worship, universities, galleries and museums), though not always residentially, to produce artworks stimulated by or related to the institution.

Following economic globalisation and the facilitation of international travel and communications in recent times, a wide range of international artist-in-residence programmes have developed: some merely offer living and/or working space; others involve commissioning site-specific works and/or subject matter. The long-standing and prestigious DAAD Artist-in-Berlin fellowships are the forerunners to all artists' residencies. However, as an example of a newly set-up residency programme, the UK-based online support service for artists, Artquest, has recently invited applications for a three month residency in Berlin offering a free live/work studio for 3 months, return air fare, a £600 bursary and £100 towards artists materials. The artist is required to produce: ‘three articles about their experiences for Artquest to disseminate on our website. This could include updates on work produced, galleries visited, or a general overview of life in Berlin.'

There are no national or international standard or model approaches to artists' residencies. Increasingly frequently, they are offered to authors and performers across all arts disciplines; though many continue to be art form-specific. Some require residence at a specific place or space for a defined period of time, which can range from a week or so to a year or two; others require attendance, not residence. The nature and extent of accommodation and facilities also vary, and may require rent to be paid by the artist, or (more usually) be rent free. Artists may be paid a salary or wage as an employee, or be paid an overall project/residency fee as a freelance/sole trader. Artists are usually required to produce a work or body of works, to be exhibited on an on-going basis throughout the residency or (more usually) as an exposition towards the end of the project; and may be required to donate and/or sell work to the host organisation, and to teach/coach or give talks about their work.

Special mention should be made of international and national sculpture symposia, to which artists are normally invited to attend or be resident for a period to make site-specific works. Artists leave their completed works on site, as a payment in kind to the host who will usually have paid for the artist's travel, accommodation and materials. The site is, or often becomes, a publicly accessible sculpture park or garden.

Application procedures for artists also vary greatly, and broadly fall into one of two schemes. For residencies providing significant financial and material rewards to artists, they are usually required to submit a résumé/cv, statement in support, and images of representative work; often followed by a face to face interview of shortlisted candidates. At the opposite extreme, many residencies merely require the artist to pay a fee or rent for the hire of the host's accommodation and facilities, in which case the artist would have no further obligations to the host and are free to do as they wish.

Because of the proliferation and greatly varied nature of schemes, hosts with no previous experience often encounter difficulties in constructing an appropriate residency contract. Each scheme will almost certainly be unique, and so other hosts' contracts should only be read to glean ideas of the kind of terms and conditions to include; they should never be adopted wholesale. Written contracts, and especially those involving the creative arts, should always be regarded as a checklist for the management of the project or scheme, specifying in detail: what the host wants to achieve from, and provide to, the artist; and vice versa.

The most frequent question asked by previously inexperienced hosts and artists is whether the contract should be one of employment or of engagement as a freelance artist: a proper and fundamental question. There is no single right answer. The host and artist need to consider, balance and agree upon a number of key factors. If the artist is engaged as an employee, the host would normally be required: to deduct income tax and national insurance contributions before paying the artist; to provide the artist with paid holidays and sick leave, unpaid emergency leave, pension contributions, and maternity/paternity benefits; not to discriminate against the artist on grounds of race, sexual orientation, religion, disability, age, for being a member of a trade union or for receiving pay unequal to comparable employees of the opposite sex; and to provide a written statement of terms and conditions of employment. If the employment exceeds one year, the artist is also entitled to claim unfair dismissal on being fired without good reason, or without being allowed to go through a proper dismissal procedure; and must be given written reasons for dismissal. If the employment exceeds two years, the artist is also entitled to redundancy pay. Such basic employment rights (and some others) are given to employees by UK law, reflect a consistency of approach of laws throughout the EU and cannot be surrendered by employees' signing away such rights in a written contract of employment. Under all employment contracts, the host automatically owns copyright in the employee's work.

If the artist-in-residence is engaged under a freelance commission contract, the host pays the artist an agreed fee or staged fee payments without deduction of taxes; the artist is required under the general law to account for their fee income to their national tax authority on an annual basis at the end of their tax year, and has no statutory employment rights; and the artist automatically owns copyright in their residency work.

It is understandable why most hosts choose to commission artists-in-residence as freelancers; not as employees.

© Henry Lydiate 2009

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.