On May 14th 1979, the newly elected Government will begin to plan its legislative programme for the next five years. Should the Arts Community require the introduction of legislation during this period, then discussion debate and formulation of proposals should begin right away.

Let’s look at two legislative shopping lists: one for the reform of existing laws which impede or hinder arts activity and the survival of professional artists as members of the working community; the other for the introduction of new laws to promote, advance and maintain such activity and survival.

Current income tax laws, as applied to visual artists, do not provide a realistic basis for assessment. Most visual artists should be treated as self-employed professionals and be taxed as such under Schedule D in respect of all their income from every source. Many are assessed on a piecemeal basis: some entirely under Schedule E; some in part under Schedule D and in part under Schedule E; others often have ‘trading’ losses refused as deductible business expenditur#e or treated as non-deductible expenditure on a hobby. Furthermore, tax inspectors vary in their interpretation of the law when assessing artists, so that inconsistencies and anomalies abound. Even accountants specialising in the arts have continually to fight and argue with inspectors to establish the professional status of their artist clients and to have them realistically assessed under existing tax laws.

A valuable reform could be the introduction of a unified code for assessing artists, to be used by tax inspectors dealing with artists. Far better would be the clarification of Schedule D so as to make express and realistic provision for professional artists. Of course, the best reform would be to exempt professional artists from liability for income tax. This apparently radical reform could be justified on the grounds that the enormous administrative expense incurred by the Inland Revenue in assessing and collecting income tax from a small minority of professional artists (most of whom pay very little income tax when properly assessed), far exceeds the total amount of income tax collected from such professionals. (This is the current position for all professional artists in the Republic of Ireland).

Social Security
There is no such category as ‘artist’ for social security purposes. Therefore, artists wishing to register, as unemployed in order to find work and/or claim supplementary or other benefits under the relevant law cannot do so, at present. Most artists ‘sign on’ as unemployed ‘labourers’; some as teachers, if they do or have done any art teaching; others simply choose a trade they have undertaken at some time. A few individuals have succeeded in persuading social security officers of their bona fides as artists and have been allowed to sign on as such. How this has been achieved is still not clear and such cases are rare; and under the present law they cannot be used as precedents to enable other artists in similar situations to sign on.

The law in this area is in need of reform. A category of worker which would include professional artists could be written in to the existing legislation and could meet the needs outlined above. As with the taxation problems mentioned, there would have to be guidelines laid down for social security officers to use in determining who was a bona fide artist; and they could be closely related to the guidelines created for income tax (and national insurance) purposes.

Both taxation and social security reforms raise the important question of the status of the visual artist as a working member of the community. It is particularly important that any reforms which are formulated come from within the community of artists, after they have been discussed, debated and drafted by them in a form they consider most appropriate

Similarly, the much-needed reform of the Copyright Act 1956 must reflect the realities of the working situation of visual artists in this country. At present, the act is based on 18th and 19th century concepts of art activity, and remedies for economic and aesthetic injury resulting from infringing reproductions, reflect a now outmoded approach. Old-fashioned methods of producing and reproducing art work have been left far behind by artists working with 20th century methods and materials, but the copyright act still defines, for example, the legal family of ‘engravings’ as follows –

‘Any etching, lithograph, woodcut, print or similar work, not being a photograph’; and defines ‘photograph’ as – ‘any product of photography or any process akin to photography other than a part of a cinematograph film’.

Where within such words and phrases, does a photo-litho print, a video art work or a hologram fit? And where in the Act is there adequate provision made for the protection of conceptual, performance or mixed media works? Should there continue to be a distinction made between ownershipp of copyright in commissioned portraits, photographs and engravings, and other artistic works? Why should it be possible, within the law, to reproduce a two dimensional artistic work (a painting?) in a three dimensional form (a sculpture?), so long as persons who are not experts in such objects (sculpture) would not recognise it (the sculpture) as a reproduction of the original work (the painting)? (i.e. a sculpture copied from Tretchikov’s ‘Green Lady’ is not allowed because ‘lay’ people would know it was a copy).

Charity Law
Hundreds of arts and artists’ organisations exist or need to exist to provide administrative support for the arts community. Many have little or no revenue and are providing services to the arts community which could broadly be described as charitable, but which are not treated as charitable within existing law. The Charity Commissioners are responsible for registering bodies as charitable and for the interpretation of the legal definition of a charity, which is still based on an Act passed in 1601.

The Act, its interpretation and application, has been widely criticised, particularly in recent years (see Charity Law and Voluntary Organisations, a report by the Goodman Committee published by Bedford Square Press), and many reforms have been suggested. In relation to the arts, a most constructive and advantageous reform could be the introduction of a legal category of ‘charitable object’ which included ‘support for the arts for the public benefit’.

Were arts organisations allowed to be registered under such or similar category, the benefit to the arts community and to the public could be enormous. Hundreds of organisations currently not entitled to charitable status would be entitled to 50% rate relief automatically, and discretionary relief for the balance; they would also become exempt from certain taxes.

These and the other reforms outlined above would provide valuable support for the arts community in this country and, thereby, also benefit the public.

New areas of law which might be introduced could include the droit moral, droit de suite, a building cost percentage for art in public places, a public exhibition payment scheme, and tax relief for purchases of art and for those donating money to or sponsoring art activity. These will be discussed in future columns.

© Henry Lydiate 1979



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.