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The Visual artist and the law by Shane Simpson

In artistic circles it is not uncommon to find art and the law set up in opposition to each other; to have the allegedly unconventional creative activity of individuals within the art world set against a caricature of the law as a dull, impersonal world of grey suits, repressive rules and an unhealthy desire for money. Such an oversimplification of the relationship between these two fields tends to be called into play every time art breaches a legal boundary, every time "the law" stops an artist from doing something. Thus, rather than thinking of the law as a positive agency in the definition and facilitation of particular activities, artists often set it up as simply a set of restrictions, a repressive apparatus designed to restrict natural creativity.

Shane Simpson's The Visual Artist and the Law is careful to avoid such a simplistic view. Instead, it sets out to assist both lawyers and artists in their negotiation of the, sometimes difficult, boundary between the two fields. First published in 1982, The Visual Artist and the Law has had a significant impact on the operations of the visual arts industry over the last six years. To cite only one example, a number of the "model contracts" which first received exposure in Simpson's book are now in common use, functioning as "standard contracts" within the industry.

However, Simpson's role in changing the framework for Arts Law in Australia has not been limited to the publication of a single handbook. He played a vital role in the initial few years of the Arts Law Centre of Australia, and since moving into private practice, has continued to write and lecture on arts law matters, as well as providing valuable legal expertise on the committees of various arts organisations. Drawing on this extensive "hands on" experience, Simpson has now revised and expanded his original book, bringing it up to date and covering important new ground.

A quick glance through the contents pages of the two editions gives some indication of the scope of the changes, with the second edition listing twenty-two chapters compared with the thirteen of the original book. While noting such obvious differences, it would be wrong to suggest that Simpson has simply added a few new chapters. Instead, the earlier material has undergone an extensive revision, providing a clear focus for dealing with the peculiarities of the current Australian art environment.

In addition to the original coverage of issues such as contracts, commissions, copyright, taxation, insurance, artist/dealer/gallery relationships, non-profit organisations and the issue of freedom of expression, the second edition provides new material designed for particular types of artist; community artists, photographers (this chapter is by William Morrow), fabric designers and illustrators. There is also a substantial expansion of the sections concerned with the visual arts infrastructure, including new chapters on arts organisations, business structures and sponsorship. Such material has clearly become more important over the last few years, particularly in the light of increased demands for professionalisation generated by the growing awareness of the arts as a significant national industry.

In addition to the growing demands from individual artists for a more coherent framework for their individual practice, key funding bodies have increased the need for organisations to act in a more accountable fashion. Further pressure has been exerted by new arts lobbying and support organisations, such as the National Association for the Visual Arts and the Queensland Artworkers Alliance, while arts journals have recognised that legal issues are important by publishing regular arts law columns and feature articles on legal issues.

Clearly the second edition of The Visual Artist and the Law is far more informed about, and perhaps more sympathetic to the coupling of art and law. However, to think that all the problems in this area have disappeared would be foolish. For example, most commercial galleries still operate on the basis of verbal agreements with artists, rather than formal written contracts. From Simpson's point of view, allowing such a major relationship to operate on the basis of a handshake is totally unsatisfactory. In contrast to the frequent claim by dealer galleries that a demand for a contract suggests a lack of trust on the part of the artist, Simpson argues that "rather than indicating an absence of trust, a fair and even-handed contract enhances the development of trust" (p.15). This emphasis on the need to clarify the relationship between artist and dealer/gallery, really should be taken seriously by every artist exhibiting in Australia today. If more artists, dealers and galleries followed the simple advice presented in this book, many time-consuming, and sometimes costly problems would simply never occur.

Importantly, in its approach to difficult legal material The Visual Artist and the Law remains accessible to non-lawyers, explaining basic points in a clear, and often entertaining manner before going on to introduce more complex issues. The book also makes a valiant effort to be as up to date as possible with important legislative changes. In discussing Applied Designs, for example, Simpson notes the introduction of the Copyright Amendment Bill in late 1988, and gives a brief account of how the operation of the law in relation to the overlap of the Copyright and Designs Acts might be affected by its passing. Fortunately, despite some eleventh hour attempts to defeat the relevant sections, the Bill was in fact passed by the Senate in May this year, thereby improving the situation for artists whose works are applied industrially to objects such as pottery or tee-shirts. As there were no significant amendments made, Simpson's account of the new situation remains valid.

Clearly a book such as this can not do everything, especially when it has to negotiate two quite differently informed readerships. However, I think it is a pity that the short, though useful, bibliography included in the first edition has been dropped. It would certainly help those with a specific interest if some brief indication of further sources was provided in relation to each key issue.

Of course in terms of the overall scope of the book, such points of criticism are very minor, and in any case, if the current pressure for further change in relation to issues such as Moral Rights and Droit de Suite does produce new legislation, a third edition will almost certainly be required. In fact, it could well be argued that the suggestions for change so carefully articulated in the first edition of the book are, at least in part, responsible for the need to produce this revised edition. One can only hope that this situation will repeat itself. However, rather than waiting to see what happens, artists, arts administrators, and others in the art business who do not have access to a copy of this essential resource, should seek one out now. While those who already have the earlier edition, should seriously consider up-dating to the second edition as soon as possible.

notes: 

Shane Simpson: The Visual Artist and the Law (second edition), The Law Book Company, Sydney 1989.