Marina Abramović is being sued for breach of contract by her former artistic collaborator Ulay over works they jointly created when working and living together in Amsterdam for a dozen years: Relation Works, 1976-1988. This lawsuit raises issues about artists’ ways of working together, and legal and business issues involved and arising.

Ulay still lives in Amsterdam, where he recently filed suit in his formal name, Frank Uwe Laysiepen. His claim concerns a written contract signed with Abramović in 1999 (after they had stopped living and working together) dealing with future use by Abramović of photographs and videos made by him, recording performances of Relation Works. The contract is a business agreement by which Ulay sold this physical archive to Abramović, who undertook to maintain it and supervise the production of saleable materials from it; profits to be shared with any gallery dealer 50%/50%, and with the artists’ half being split 30% to Abramović and 20% to Ulay.

Ulay claims Abramović has fundamentally breached her contractual obligations to him, alleging that: she has wrongly asserted to galleries that she is the sole author of their joint works; failed to provide him with accurate sales statements of material produced from their joint works; not paid him his full royalty entitlement to a share of profits; prevented him from including images of their joint works in the publication Whispers: Ulay on Ulay; and obstructed the establishment of his Ulay Foundation for the management of his artistic legacy. Abramović denies such claims, plans to defend the lawsuit, and considers Ulay’s allegations defamatory. Her lawyer told the Guardian: ‘My client is very confident in her position in front of the court. She will defend her rights and reputation by all legal means.’

A positive facet of this wrangle is that the parties negotiated and executed a written business agreement covering the future use of documentary material recording their joint working. This was an understandable joint decision at a time when Abramović’s international reputation and recognition had been established (especially following her award of the Golden Lion for Best Artist at the 1997 Venice Biennale for her video installation and performance work Balkan Baroque).The trial will focus on a court’s interpretation of the meaning of specific written contractual terms of the 1999 business agreement, and assessment of Abramović’s subsequent fulfillment of her obligations under it. It is not known whether the 1999 contract was Abramović and Ulay’s first or only written artistic and business agreement, or whether they had negotiated and executed previous agreements from the start or during their relationship – which would have been good and sensible practice.

Surviving art history records show that for centuries artists have enlisted the assistance of others to develop and execute works. Throughout the Western Renaissance guilds not only regulated the professional qualifications of practitioners and quality of their work, but also the training of apprentices and journeymen who assisted the maestro in whose studio they were employed. Extra hands assisting the maestro increasedthe speed and turnover of the studio’s production; but commissioner-patrons frequently insisted on written contracts specifying that the hand of the maestro would be used to execute, say, faces and hands. At the same time written contracts were used by the maestro to regulate the terms and conditions of work by apprentices and other assistants.

Although the traditional guild system has now fallen away, modern and contemporary eras have seen the continuation of artists enlisting the services of others to make work. Artists now do so not only for the traditional reason of increasing production, but also to employ the use of non-traditional materials and techniques with which others are better skilled than the principal. Notable examples include Andy Warhol, Richard Serra, Jeff Koons, Damien Hirst, Anish Kapoor, and Antony Gormley. In such cases artists travelled from an economic situation at the start of their careers where they could not afford to employ and pay others, to a position of significant standing in the art market sufficient to afford to hire internal studio assistants and external contractors. And it would be surprisingly unbusinesslike if such artists did not engage these assistants and collaborators via written contracts, especially specifying whether they had any artistic or legal rights of joint authorship with the artist.

The film industry faced similar authorship issues during its development, on a much larger and more complex scale than that experienced by artists. Making movies is an intensely collaborative process, involving creative and technical contributions of potentially hundreds of people and businesses. Over the past century the industry has evolved its own trade practices, and successfully lobbied governments to enact laws to enforce the rights of principal producers and authors of film, especially in relation to other contributors. Extensively detailed written contracts are now the norm, specifying and regulating everyone’s rights and responsibilities for the film’s production and after-life in the market. National and international intellectual property laws – copyright especially – enact a framework of provisions governing rights of producers and authors over editorial control and economic exploitation, and permit the use of written contracts to execute business deals using these legal rights. These provisions reflect essential artistic and business realities of movie-making: producers facilitate and resource the process, principal directors are the authors, and both need recognition and reward for their investment of resources or creativity.

Business transactions – creative or otherwise – often become complicated where there is another personal relationship between the parties that may influence their behavior or judgement at the expense of objectively sound decision-making. Sometimes these situations have positive outcomes: consider the longstanding and successful creative and business collaborations and personal relationships of, for example, Christo and Jeanne-Claude, Gilbert & George, Boyle Family, Ian Forsyth & Jane Pollard. In the case of Abramović and Ulay their creative and business relationship ended at the same time as their personal one: perhaps the continuation of both types of relationship was interdependent. A personal relationship may end or change, derailing or jeopardising the creative one, and is all the more reason for such collaborators to record their respective and joint rights and obligations in a written agreement. Not only does such an agreement act as a positive aide-memoire and guide during the continuation of the collaboration, it can also provide for easier transition if the relationship ends.

It is understandable that written agreements are not usually discussed or executed before artists incrementally move into a creative project that may progress into an on-going working relationship. But sooner rather than later they should write one. Problems that may arise in relation to creative endeavours, which could be completely avoided or minimised via a written agreement, include how to make decisions about: work processes and methods and techniques; what work to pursue; when work is completed; edition- or series-making; title of work (if any); joint authorship of work and name of author/s; exhibiting work; selling work. Other provisions might include future uses of work and share of any royalty income. These matters were the subject of Abramović and Ulay’s contract now in dispute; but significantly it was made over two decades after they started working together and one decade after their relationships ended, and when their respective negotiating powers had substantially changed.

© Henry Lydiate 2015

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.