The fine art industry has experienced a remarkable digital transformation in the last year and a half. At the forefront of this paradigm shift – preceding even the Covid-era – are tech-driven art collectives and projects, with teams composed of artists, programmers, engineers, software developers, data scientists and chemists, to name a few.
However, a new report released on July 26 by the Serpentine Galleries Legal Lab asserts that “legal infrastructures are yet to be acknowledged for their multifaceted potential in supporting cutting-edge creative practice”. Established in 2019 as part of the London gallery’s R&D platform, the Legal Lab “seeks to strengthen the foundations of the future ecosystem for art, science and technology, through investigating legal issues and prototyping accessible legal solutions”.
“One of the most concerning findings in the inaugural Legal Lab Report 1: Art + Tech/ Science Collaborations is the lack of industry standards when it comes to the use of IP that is created as part of a collaborative project” explains Alana Kushnir, the Lab’s Principal Investigator, to Art & Counsel. “This is both in terms of who owns the project IP and who has the right to use it for purposes outside of the collaboration”
According to the Report, these are just some of the novel legal issues that arise from interdisciplinary collaborations across art, digital technology and science. “Multiple areas of law – from corporations to contracts and intellectual property – already provide ways for creatives to support and protect their work. There’s heaps of untapped possibilities in using legal tools to better support creative practice” Alana points out.
For those who are late to the scene: current trailblazers navigating the confluence of art, science and technology include Tokyo-based teamLab, whose immersive art installation Borderless (2018-2022) recently earned a Guinness World Record for the “Most Visited Museum”; extended reality (XR) based platform Vortic which transformed virtual viewing experiences for the art world both during and after the Covid pandemic; Obvious, the visionary artificial intelligence (AI) collective who auctioned the first piece of AI-generated art for nearly 45 times its high estimate ($432,500) in 2018; and art-science collective Visualogical, who jointly developed ‘theVov’ phygital ecosystem to “revive landmark UK exhibitions gathering digital dust” this year.
Crypto art has dominated the conversation in the early half of 2021: digital artist Beeple’s Everydays: The First 5000 Days (2021) NFT artwork realised $69,346,250 at auction, while an NFT of the source code for the World Wide Web sold for $5.4 million, at Christie’s and Sotheby’s respectively.
However, the frothy world of NFTs has not come without its niche legal challenges. For instance, artist Krista Kim’s Mars House NFT – the world’s first NFT house – was the subject of an intellectual property dispute with a freelance 3D-modeller who collaborated on the project. Given the developing NFT technology, legal regulations and frameworks are still playing catch-up — which tends to be the case with art and tech in general.
The 40-page Report is a culmination of research, analysis, interviews and surveys, which received over 250 responses from artists, curators, technologists, scientists, cultural institutions, galleries, funders, tech companies, legal academics and lawyers across the globe (“user respondents”), since 2019.
Spearheading the Report is Alana, who is also a curator, lawyer and founder of art law and advisory firm Guest Work Agency, along with Victoria Ivanova (Serpentine’s R&D Strategic Lead) in collaboration with Marie Potel-Saville and her legal design firm Amurabi.
Specifically, the new study identifies “pain points” that arise from these novel collaborations which employ advanced technology, and aims to “catalyse the development of user-friendly contractual processes and legal education resources, as well as cross-disciplinary standards for best practice collaboration”.
– REPORT HIGHLIGHTS –
Contracts As A Safety Net
- Under-Used Agreements: The new survey data reveals that only 44% of user respondents use written contracts, while 42% use written contracts sometimes, and 14% of don’t use written contracts at all.
- Lack of Consistency: For those who do enter into a written agreement, there is little consistency when it comes to opportunities to ask for changes to a contract before entering into it.
- Most Prioritised Contract Provisions: User respondents who were more familiar with drafting and negotiating contracts prioritised the following provisions: Ownership → Liabilities → Insurance → Confidentiality.
- In contrast, user respondents who were less familiar with drafting and negotiating contracts prioritised the practical components of the project: Deliverables → Final form of the work → Insurance → Confidentiality.
- Legal Representation of Artists is Still Relatively Niche: The report attributes a lack of specialist legal advice as the reason for an “anti-contract mindset” among artists.
- Rarity of Lawyers Specialising in Art + Tech/science Collabs: While contracts are generally initiated by the host institution or sponsor – for example, a university, museum, gallery or residency organisation – and drafted by their in-house or external lawyer, a number of artists and curators expressed the desire to have a lawyer advise them on a contract before signing.
Determining Intellectual Property (IP) Rights
- Use of Prior IP and Source Code: Technologists working with artists expressed an interest in retaining the copyright in software code that they have written for a specific project, and adapting it to other unrelated projects.
- Negotiating Copyright: For technologists, the ability to negotiate the copyright terms is easier when collaborators understand what is involved for the technologist in making the software for a project.
- Ownership of Project IP: an Instagram poll revealed that only 15% of @serpentineuk follower-respondents know who owns IP when they collaborate with others, while 85% did not.
- Copyright Law v The Desire for Artists to Own IP: The majority of user respondents believe that the artist owns the intellectual property created as a result of a collaboration. However, copyright law (a subset of IP law) may regard whoever puts the artwork into material form to be the author and first owner of the copyright.
- Rights to Use IP: User respondents indicated being confused about who has the rights to use the project IP and the protocols of such use, especially once a project is completed. AI collaborations are particularly difficult to ascertain. For example, does the person who trained the neural network, designed the code, or the person who executes it own the rights?
- No Standard Framework Regarding What Material Can Be Re-Used for Other Projects: “While having industry standards is perhaps somewhat antithetical to the forward-thinking approach of the art field, I think some standardization could be useful in practice for the longevity of these collaborations.” Alana maintains.
Artists as Entrepreneurs
- “Another concerning finding was the lack of knowledge amongst artists, curators and others in the art field about the benefits of incorporated legal structures and how they can be used to support artists taking creative (and financial) risks” Alana tells us.
- Over 10% of Artists are Unaware of What Type of Business Entity They Use for their practice: When collaborating, nearly 57% of artists use sole trader/ proprietor entities, while 20% use limited or limited liability company structures. Joint ventures, new corporate partnerships, and non-profit structures were rarely deployed.
- Re-Thinking Business Models for Collaborative Practice: Artists expressed an interest in going beyond traditional employment or sub-contractor relationships (e.g. sole trader to business entity conversions for tax and liability purposes).
- Flat Fees Are the Primary Form of Remuneration For Collaborations: other types of payment structures and incentives, like royalties and equity ownership, are rarely used. Some artists expressed an interest in diversifying their income streams beyond commissioning and artwork sales (e.g. work could be published on commercial platforms, where each artist involved has a percentage of the revenue).
While the study has addressed artists’ “wants and needs”, the project is seeking further partners to help realise the action points identified in the Report. For instance, the creation of a glossary of legal terms; a specialist art/tech lawyer referral directory; a policy on collaborating with artists; and example collaboration contracts with explainers are some of the solutions considered in the short-medium term. Long-term action points include contract automation solutions for parties, knowledge dissemination, and a Model Code and Membership Body.
The Launch Presentation of the Report via Twitch (7 September 2021 @ 12pm) presents an opportunity for those interested to learn more about the Report findings and action points.
[Click here to download the report]
| Words: Rinnah Anosike
