The Whitechapel Gallery’s current survey show ‘Electronic Superhighway 2016-1966’, is a reflection of the extent to which digital media are now being used by increasing numbers of visual artists, especially as the costs of equipment have substantially reduced, enabling good or high-quality moving images to be created and disseminated. Other key players such as gallery institutions, dealers and collectors in the contemporary art ecosystem have responded positively to the growth of such activity.

In the UK, for example, Tate Britain launched Transform in 2014: ‘a new monthly Monday night programme of artist’s film screenings celebrating the protean ability of film and video to conjure other forms. Transform looks at how artists push the medium into new narrative, sculptural and sensual realms. Each event features the artists in conversation … and will continue with a rolling programme of screenings, curated seasonally.’ In recent years the Turner Prize has been awarded to artists primarily working in film and video: Elizabeth Price in 2012, Laure Provoust in 2013, Duncan Campbell in 2014. Art Monthly frequently reviews artists’ films, and in its last issue considered Adam Chodko’s Deep Above 2015 film, funded by the Wellcome Trust’s Arts Award. Film London’s Jarman Award includes a new Jules Wright Prize for ‘a female creative technician working in the field of cinematography who has played a significant role in artists’ moving image production in the UK’ (Artnotes AM393).

The inter-relationship between artist’s and other key art-world players (supporting, facilitating, exposing, collecting, selling and reselling their film and video works) is markedly different from traditional unique-object-based transactions: the intrinsic value of a film and video work generally lies in its moving images (including sound), not in the material object itself. As a result, non-traditional art legal and business issues are involved, requiring new and different knowledge and skills.

The paramount issue is the artist’s creative intentions: to create a primary artwork, or perhaps a secondary recording of a performance-related artwork; to be seen by a unique audience, by limited defined audiences, or by unlimited undefined audiences; to transfer physical/digital ownership to collectors of the unique master, of a limited edition of copies of masters, or of an unlimited edition of copies of masters. Ideally, such intentions should be considered and clarified before the work is shown to any audience – certainly before transferring physical/digital ownership to collectors. Key risks of not doing so are that audiences and/or collectors will make assumptions in their own best interests, which may not coincide with the artist’s. Ideally artists should use their self-clarified intentions within the overall scope of the work to make plans for viewing and/or transferring physical/digital ownership – embracing legal and business considerations.

Accordingly, new and difficult challenges arise on an increasingly worldwide scale for artists seeking support for creation, dissemination, communication, and recognition of their film and video works. There are two main areas of law and art business for consideration not only by artists, but also by agents/dealers, collectors/purchasers, commissioners, curators and other facilitators/producers: intellectual property and contract.

International and national intellectual property laws, copyright in particular, give protection to creative works through recognition of their medium, form or technique, including, for example, literary or musical or still artworks, and require them to be in a fixed form. Film/video is a recognised copyright medium which embraces both moving images and any sounds. Copyright laws automatically give authors of film/video exclusive rights to prevent or authorise copying, public communication/performance, renting/leasing, altering/amending/changing, and omission of authorship credit. A film’s author is the principal director who owns copyright jointly with the film’s producer, unless they are (as is usually but not always the case with visual artists) the same person, who becomes the sole copyright owner. Duration of film copyright varies widely worldwide: some countries specify between 25 and 95 years from public release date, others for the principal director’s lifetime plus 25/50/70 years after death. The UK has a curious provision: film copyright lasts for the lifetime plus 70 years after the death of the last surviving of the following: principal director, screenplay author or original soundtrack composer.

Performers in film works (who usually are not, but sometimes are, also the creators/authors) are also given rights by international and national intellectual property laws. ‘Performers rights’ are automatically acquired by performing, and these include the performer’s exclusive right to authorise recording of their live performance (non-property rights) and to make and distribute, rent and loan, copies of such recordings (property rights). Performers’ rights generally last for 50 years from the recording’s first release, and usually require a name credit at the end of the film. Performers’ rights laws allow contracts to be used to regulate performers’ business transactions. It is normal practice for professional performers in conventional art forms (music, dance, film, theatre) to give prior authorisation for recordings of their live performances through written contracts with would-be producers. In this way performers negotiate and agree the nature and content of the recording itself, their performance fee and their share of economic rewards (royalties) that may be earned by future commercial showings or broadcasts or other commercial communication of authorised recordings.

Copyright laws also envisage and embrace the use of contracts so that copyright owners may exploit their property by granting licences to others to copy/show/lease/disseminate/distribute their works. In this way copyright ownership can be transferred to others to own (like transferring ownership of real estate) or be used to grant licences to others to use the content of the copyright work (like granting a lease). Such contracts need not, but may also include transfer of ownership of a physical/digital object holding the audiovisual data of the film. In other words, the artist sells only the right to use/show the images but not to own exclusively the physical/digital object; for example, the artist might contract to provide a download of a film for a client’s use, which the copyright transfer or licence contract allows. Such contracts may restrict a client’s ownership and/or use by including specific terms and conditions such as territorial limits of such ownership/use. Selling ownership of film copyright or granting licences to use film can be a lucrative source of capital or income for the artist-author/copyright owner.

Usually collectors are interested in following the traditional acquisition method of buying full ownership of a physical/digital object holding audiovisual data of the film. It is important for both collector and artist to clarify at point of sale the extent to which the collector is also acquiring any rights/permission to show the film. An extreme example: the artist assumes that the collector wants to own the work and view it privately; but the collector does not disclose plans to show the work publicly, charging viewers and doing so digitally via the internet. To avoid these kinds of difficulties, such matters should ideally be discussed before the sale, and be included in the contract of sale together with any other terms and conditions – as they are invariably dealt with in comprehensive written acquisition contracts by public-facing institutional collectors of artists’ film and video works. Tate has assumed a leading role in transparency of online information and education about acquisitions, including an excellent acquisitions template for film and video.

© Henry Lydiate 2016

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.