Tracey Emin’s recent dispute with a north London primary school over the ownership and authorship of an artwork raised an interesting public debate, much of it focusing on the market value of art: ‘A £35,000 Tracey Emin quilt – but worthless if school tries to sell it’ (the Guardian, March 30, 2004).

The issues involved, and their possible resolution, are broader than those reported in the media, and deserve closer examination. The reported facts are as follows.

‘Art in Sacred Places’, a London-wide scheme that took place in 2000, included a project involving 12 contemporary artists working with children to create and exhibit artworks in places of worship throughout the capital. Emin, one of the appointed artists, worked with children at Ecclesbourne Primary School. ‘Tell me something beautiful’ was Emin’s chosen subject; she asked eight-year olds from two classes to express their thoughts about beauty in felt letters sewn onto patches of fabric; these, in turn, were sewn onto a large blanket to make a patchwork quilt. The children chose words such as ‘sunrise’, ‘bird’, ‘sky’, ‘universe’, ‘mum’, ‘sun’, ‘stars’, ‘moon’, ‘flower’. After its exhibition, the quilt was kept by the school in a storeroom, there being insufficient funds for the estimated £3,000 needed to have it professionally framed.

Recently, the school considered auctioning the work to raise funds for pupils’ art projects. Sotheby’s opined that the work could fetch up to £35,000 at auction; but only if Emin formally acknowledged her authorship. The school’s governors, parents and teachers, consulted and agreed to consign the work for auction. It is unclear whether Emin was formally consulted about the proposed sale, but her reported reaction on hearing of the plan was to deny authorship of the work and seek its return. White Cube, Emin’s London gallery, told the Guardian she was ‘extremely upset and depressed by the news’, and in a letter to the school said ‘Tracey is one of the country’s leading contemporary artists and Ecclesbourne should be proud to be in possession of such a historically valuable collaborative work … But your actions suggest otherwise. In the light of this Tracey has requested that the blanket is collected from the school as soon as possible.’

Key issues in this case include: Who owns the work? Who is the author? Who owns the copyright and statutory moral rights in the work? And what lessons might be learned for future schemes involving artists working in schools or other publicly funded residences? These issues should have been foreseen and dealt with by the terms of a written agreement between the school and/or local education authority, and the artist and/or managers of the ‘Art in Sacred Places’ scheme. Such a written agreement does not appear to have been made.

In the absence of such a written agreement, how should ownership of the work be determined? Emin left the work with the school for around four years, only seeking its return after learning of the planned sale – strongly suggesting that she had accepted the school’s outright ownership. Had she wanted to be the work’s owner jointly with the school – say on condition that it could not be sold without her consent – it would have been helpful to have signed a written agreement with the school to that effect.

Distinct from ownership is the question of authorship. The ancient craft tradition of collaborative patchwork quilt-making is still practised today in some, often rural, communities in Europe and North America, usually by women. Such women customarily – and sensibly – agree, in advance of their collaboration, who will be the eventual owner(s) and author(s) of their completed work. In Emin’s case, although no such agreement appears to have been made, the idea for the quilt was hers; it was created by the children who conceived their own original visual/literary expressions of ‘something beautiful’, manifest on their felt patches; the patches were sewn (by Emin, the children, or both) onto the large blanket and White Cube, on Emin’s behalf, recently described the work as ‘collaborative’. Furthermore, for centuries artists have worked with others to make works of fine and applied art and architecture, through the medieval guild and apprenticeship systems. Artists employed studio assistants who both learn from, and contribute to, the making processes, and this practice continues today. Employed is the operative word: such assistants were/are usually contracted to be paid for contributing their skill and labour; not to collaborate as joint authors. Written contracts of employment were – still are – best practice, to clarify respective rights and duties of employers and employees, including authorship.

In modem times, copyright law has specifically foreseen and addressed the problem of joint authorship; because the author of a copyright work is normally the first copyright owner (unless the author is an employee or there is some other contrary contractual agreement). Today’s UK copyright law defines a work of joint authorship as ‘a work produced by the collaboration of two or more authors in which the contribution of each other is distinct from that of the other author or authors’. ‘Collaboration’ and ‘distinct’ are the key words: if two or more makers’ contributions are not dearly distinguishable from each other, it is a work of joint authorship; if they are distinct, then the work is simply a collection or anthology of individual copyright works. An individual author’s statutory moral rights (to be identified as the true author, to prevent false attributions of authorship, or to protect the work against derogatory treatment) also apply to joint authors – who are legally defined the same way.

As for Sotheby’s initial valuation of the work at around £35,000 – but only if Emin formally acknowledged her authorship – things have changed. Now there is reliable public and private documentation confirming that Emin ‘collaborated’ with the children in making the work, and recent extensive media interest in the work has arguably enhanced its current and future market value. However, the market may never have a chance to express its view. Emin and the school have recently resolved their dispute, apparently on the basis that Emin will pay for the school to have the work professionally framed for display. It would be sensible if that settlement clearly documented who are the work’s owners, authors, and copyright and moral rights owners, to avoid similar wrangles over the work in future.

More importantly, however, this case demonstrates the need for written agreements to be made – from the outset – between artists and those managing artist-in-residence or other similar schemes, clearly stating whether the artist is an employee, or a freelance collaborator, partner or consultant and, in relation to artwork resulting from the scheme, who will be its author(s), physical owner(s), and intellectual property rights owner(s).

© Henry Lydiate 2004

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.