In this post-digital age increasing numbers of artists collaborate to create non-traditional works of time-based or mixed media, for which a significant global market has developed and is advancing. For art market professionals trading in such works, for collectors and curators, authenticity is their paramount consideration; not in the sense of proving personal hand-eye coordination of a single Master, rather of being sure who conceived and directed execution of work. Artists should, but do not always, provide definitive proof.

When two or more people work together to create a work, the author may be: the lead artist alone; the two or more joint creators; or contributors such as independent contractors, assistants, employees. Does this matter; did it ever matter?
For most historical works, records have not survived and authors are unknown. We have to guess whether works were commissioned or autonomous, and whether artists were identified in their contemporary time. Such anonymity evidently concerned Grayson Perry in our time. His exhibition at the British Museum in 2012 paid homage to unknown artists throughout art history: his installation The Tomb of the Unknown Craftsman comprised objects selected from the museum collection, alongside new works by Perry. He explained: “This is a memorial to all the anonymous craftsmen that over the centuries have fashioned the manmade wonders of the world…The craftsman’s anonymity I find especially resonant in an age of the celebrity artist.”

Surviving records of what posterity has judged to be significant artworks sometimes identify the lead artist or architect – Pericles commissioning sculptor Phidias in the fifth century BC to ‘oversee design and embellishment of the Parthenon’. Volumes of surviving records from the Renaissance period buttress western art history, and especially identification of authors. One of the first recorded authorship lawsuits was tried by the Senate of the Venetian Republic in 1511: Dürer v. Raimondi.

Dürer had made and marketed a series of woodcut prints about the Life of the Virgin. Raimondi, a commercial engraver and copyist, engraved, printed, and sold multiple copies of Dürer’s images – without his knowledge or consent.  Raimondi ignored Dürer’s eventual ‘cease and desist’ entreaties and continued his evidently profitable merchandising venture. Dürer finally sought a legal remedy from the Senate. The facts were not in dispute and, in the absence of any intellectual property rights laws, the Senate allowed Raimondi to continue producing and merchandising Dürer’s images – with the proviso that he could not in future include on them Dürer’s unique ‘AD’ logo.

Not only is this one of the earliest recorded cases in the development of copyright laws, it also illustrates the court’s difficulty in understanding the true nature of authorship (and Dürer’s legal claim). The Senate focused on the innovative and highly technical skill and labour Raimondi employed in making engraved copies; not on the art. Dürer’s original images were the art; not his original woodcuts or his prints, and not Raimondi’s engraved copies. Under today’s copyright laws, Dürer’s lawsuit would have succeeded.

Historical records also describe the working and employment practices of European professional artists in the late Middle Ages and beyond. The system of artists’ guilds controlled or influenced the market place, but especially employed Apprentices, certified Journeymen and eventually free Masters: written contracts of employment with apprentices and journeymen, and with commissioners and patrons, left no doubt that the author/artist was the Master. Guilds declined and fell during the 17th and 18th centuries, as academic and art schools developed and artists became increasingly autonomous. This eventually led to teaching focusing almost exclusively on creativity and its processes in the modern and contemporary era, at the expense of teaching good professional business practices. Sloppy conduct of art business by artists can and does result in serious problems, especially when working collaboratively with other artists.

Andy Warhol’s Factory between 1962 and 1984 has been likened to a Renaissance Master’s studio, pithily described by the Velvet Underground’s John Cale as “an assembly line of art workers”. They variously assisted Warhol’s execution of ideas for works, or did so alone with – and sometimes without – his express directions or authority. The absence of clear documentation defining the roles of Warhol’s art workers in the creative process during the Factory decades has, in recent times, undoubtedly fuelled legal disputes over the authenticity of many of his works. Such disputes are likely to continue to arise; the more so as his works are traded for increasingly record-breaking prices worldwide.

Like Warhol, Damien Hirst established an “assembly line of art workers” to produce large numbers of works, including especially his spin paintings. Hirst is widely quoted admitting personally making only five spot paintings because “I couldn’t be fucking arsed doing it … They’re shit compared to … the best person who ever painted spots for me was Rachel Howard. She’s brilliant. Absolutely fucking brilliant. The best spot painting you can have by me is one painted by Rachel.” And, like Warhol, authenticity disputes have arisen over some of Hirst’s works. Although alive to attest personally to authenticity, memory is fallible especially when numerous people are hired to produce volumes of work: best evidence is clear documentation recording the who, when, where and how of creativity.

In 2009 UK’s Supreme Court ruled in favour of Matthew Fisher, the former organist of the 1960s pop group Procul Harem, in his lawsuit against Garry Brooker and his music publisher. Fisher claimed to be joint author with Brooker of the music composed for the now iconic song Whiter Shade of Pale. The absence of clear documentation defining the role of the organist in the group, and especially in the composition process, undoubtedly left open whether he was Brooker’s employee, assistant, co-composer or partner at the time of the composition in question. Because of this contractual uncertainty, the court relied upon copyright law’s rules for deciding who is an author or joint author; and was able to support Fisher’s claim because the organ part he composed and played was distinctive and substantial. He was awarded a 40% share of the music royalties earned by the song in future.

Contractual documentation can and should put authorship beyond doubt. Business and co-creative partners are joint authors: ideally a written partnership agreement should say so, and their works should be named and authenticated accordingly. Independent contractors hired to assist in executing/producing works may be legally regarded as joint authors (if they made a distinct and substantial creative contribution), but not if hired via a written agreement clearly specifying otherwise. People hired as employees (with duties ranging from making tea, sweeping the studio floor, answering phones, sourcing and fabricating materials, developing ideas and/or executing them) may be legally regarded as joint authors (independent contractors or partners), unless there is a written contract of employment clearly specifying otherwise.

The more financially successful an artist’s works become the greater the risk that a former collaborator might claim entitlement to sole or joint authorship; and a financial share in, for example: income from copyright royalties earned from reproductions and merchandising, or from artists’ resale royalties. Some collaborators also or only claim public acknowledgment and credit for their collaborative contributions. Whatever might be claimed in future should ideally be discussed and agreed in writing at the outset.

© Henry Lydiate 2013

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.