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cc-eyebeam - [cc-eyebeam] why art shouldn't be property

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Subject: Creative Commons-Eyebeam Forum 2003 November 12-19

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  • From: jippolito AT guggenheim.org
  • To: cc-eyebeam AT lists.ibiblio.org
  • Subject: [cc-eyebeam] why art shouldn't be property
  • Date: Sun, 16 Nov 2003 12:35:10 -0500 (EST)


Joseph Pietro Riolo wrote:
> Is it wrong for authors and artists
> to exercise property rights in their writings and art?

Making art into property helps plenty of collectors and middlemen–even a few
artists. The problem is, it cripples artists more than it helps them, by
covertly impeding their power to <b>create</b>, to <b>get paid</b>, even to
<b>give</b>.

Others on this list have commented on the hurdles intellectual property
presents to the creator, as well as the difficulty of squeezing fair
compensation out of a gallery or recording contract. What is less well known
is that granting art the status of property even impedes artists' ability to
give. Of course, artists *are* constantly giving, in the sense of working
without pay--yet property law makes sure that artists aren't the ones
empowered by giving art.

There are two ways in which the concept of art as property hampers artists'
ability to give. Firstly, those artists who make art to give away won't show
a profit on their income tax return, which in the US will lead the Internal
Revenue Service to reject as a "hobby" any attempt to write off expenses such
as studio rent. Even if an artist shows a profit, she can only write off the
cost of materials for any charitable donations. This is in contrast to the
benefits available to the *collector*, who can write off the market value of
donations. (Mr. Rauschenberg can claim a $100 deduction on paint and canvas
for his white paintings, but Mr. Rockefeller can claim a $1,000,000 market
value deduction when he donates them to the Menil Collection.)

Secondly, making art property has implications beyond the lifetime of the
artist. If you think artists don't get an even break giving away art while
they're alive, just wait until they're dead. My father, a second-generation
abstract painter, was well known in the 1950s, but his market shrank when he
moved away from New York City in subsequent decades. Nevertheless he
continued to paint prolifically and had hundreds of unsold works in his
studio when he recently died. As heirs, my brother and I were faced with the
dire prospect that the IRS could take his asking price for a painting,
multiply by the number of paintings in his inventory, and then levy taxes on
this farcical multimillion-dollar figure.

Whether an artist sells work or makes work to give it away, the implications
are the same. Art is property; and you can't give property away to avoid
inheritance tax; you can't even throw it away. Attorney John Silberman once
asked the IRS how it would judge a body of works made purely for art's sake,
with little commercial potential. The response was, "If you do not want to
pay taxes on them, destroy them before you die." [Rothschild-Sharpe
Foundations, <i>A Visual Artist's Guide to Estate Planning</i>]

This is exactly what artists should do: destroy their artistic property
before they die. But how can artists destroy artistic property without
destroying art?

The answer, I think, is open licenses. By extending the noncommercial,
sharealike, and open source requirements attached to such licenses we can
envision a future in which an artist's legacy benefits people instead of
benefiting institutions. Firstly, such open-licensed artworks would have no
clear sales value, and hence not be taxable as income. Secondly, after an
artistÂ’s death, there would be benefits for inheritors of the estate. The
primary job of the executor of an artist's estate should be to give the
inheritance away in the manner most consistent with the artist's intent. The
use of open licensing would get around the issues imposed by tax authorities
that result from the model of art as property.

It would be important to prevent a tax court from going after a beneficiary
with the argument that the open license was only a default, and the
beneficiary could still negotiate a higher price through a private
transaction. Fortunately, the fact that the works were available for free
should undercut such an argument. I'd be curious to hear from the lawyers
whether more exclusive terms might be required to free the work from putative
tax valuation.

Within the wider arts context, there would be implications for collecting
institutions or individuals. For museums to acquire open-licensed art might
require them to transform from collecting institutions to circulating
institutions. This change would be just as dramatic for paintings as for
online art, for museums commonly exhibit less than ten percent of the works
in their collection; the rest gather dust in basements and warehouses. Art is
cultural heritage, not an investment to be squirreled away in a vault as a
form of commodity speculation. To acquire a sharealike work, museums might
have to drastically reshape their acquisitions policies to ensure the works
in their collection spent the maximum possible time on public view--if not on
their own walls, then on loan to other institutions.

Cheers,

jon




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