Sean Egan looks at some of the issues that surround the engagement of artistic directors.
A wonderful feature of arts organisations is that no two are the same. The work is different but also the way in which the organisations function differs. This variety is reflected in how organisations contract their artistic leader, however titled ? whether artistic director, chief executive or head of arts.
From a board?s point of view, the artistic leader is a key asset of the business and the contract securing his or her services needs to be clear. However, for a number of different reasons the contract may either not be in writing or may not have been thought through and this can be an issue. At one end of the spectrum, the position is clear for individuals contracted as employees, providing exclusive services to the organisation. Under that arrangement, the individual will have statutory employment rights, and employment legislation requires that specific details of the arrangement be put in writing. The individual provides services in accordance with a job description and, technically, the employer has full control over the manner in which the services are provided. Under such agreements there is a presumption that copyright is assigned to the employer, though specific clauses are usually included.
The other extreme can apply. The individual will provide services as a freelance artist, is treated for tax and National Insurance purposes as self-employed and there is a mutuality of control as to how the services are delivered, i.e. no master?servant relationship. In practice, services are provided on a project-by-project basis and agreed in advance. The individual can provide services to other organisations and is paid at an agreed rate depending on what services are provided. There will be no payment for sickness, no statutory employment rights and there may be no guaranteed work or guarantee that the artist will be available to provide services. Such arrangements may be a continuation of how the artist provided services to the organisation before being appointed to a particular role. There is also an important distinction in that the presumption in any freelance arrangement is that any copyright is retained by the artist. If the agreement is silent on what rights are granted to the organisation, there will be an implied licence to cover the immediate use of the work that may not extend to future presentations.
When assessing whether or not a relationship is that of an employer/employee, the relevant authorities ? whether Inland Revenue, DSS or Employment Tribunal ? will take some account of the wording of the contract, whether a salary is paid, whether there is sickness entitlement, and the level of exclusivity and control but ultimately will look at the nature of the relationship as a whole. It is important therefore for organisations to consider whether the relationship is correctly reflected in the agreement ? and if there is no written agreement whether there should be one. If an essentially freelance arrangement becomes one where the individual ceases to be available for other work and undertakes tasks that are wholly controlled by the organisation, then the individual may, de facto, be an employee. These issues can become complex if the individual is undertaking different sorts of activities. For instance, he or she may be responsible for artistic policy, selecting work and scheduling but also direct shows or provide other services. The organisation needs to be clear as to what it expects from the artist, and therefore the level of remuneration and the extent to which rights are acquired. It should be settled in advance how commercial exploitation of work would be treated in terms of ownership, decision-making and remuneration.
For some organisations, though constituted as charities with trustees who have the executive power, the reality may be that the raison d?être is to present the work of the artistic leader and that if the individual chose to leave, the organisation might cease to operate. The dislocation between the legal structure and the artistic reality is unsatisfactory and will not be resolved in the Charities Bill when it becomes law. In practice, boards of these organisations take a pragmatic view and their involvement will generally be out of enthusiasm for the particular artist?s work. Such boards need to consider whether they can deliver an artistic programme in accordance with their obligations to funders and venues, and whether the contractual notice period the artistic leader needs to give is satisfactory. It is easy for organisations to look at the financial benefits of self-employed status and not to focus on its requirements from an artistic point of view. No matter how tight budgets are, the power and ability to deliver the work must be paramount.
Sean Egan is Head of the Arts & Media Department at Bates, Wells & Braithwaite, Solicitors and can be contacted on s.egan@bateswells.co.uk