By: Rashi Choudhary & Kruti Kachhwaha* |
Art is a medium of expression for artists and has played a pivotal role in the social evolution of the mankind. Appreciation for creative expression has existed since time immemorial through various civilizations and periods. Unfortunately, the social and economic conditions of artists who are not renowned have been worse than ever, especially during a global Pandemic. Social and economic security is a basic necessity in the 21st century. The artist community falls largely under the unorganized and informal sector in India. The focus of the article is to shed light on the plight of Indian artists and their position under the labour law regime.
The English writer Samuel Foote wrote about authors who were too forward (politically) for their times and lived in poverty for the same reason. He coined the phrase "Born in a cellar and living in a garret". This phrase was picked up for artists and a new phrase emerged, “Starving in Garret”. The Death of Chatterton is a painting by the English painter Henry Wallis (1830-1916) which encapsulates the idea of an unrecognized artistic hero dying alone in an attic. Soon the idea of “Genius in Garret” emerged, where the latent and intrinsic value of a genius’ work is recognized after his first sale when it gets on the market. The interplay between art and law is not limited to the area of intellectual property rights. Labour laws of a nation are vital as they form the foundation of an economic system. Artists have moral as well as economic rights. Artists require economic and social stability, which is an undisputed fact. “Art” in a layman language can have subjective interpretation and there exists no single definition of the same. It has been a pertinent philosophical question since time immemorial. For this article, the artist refers to the creator of artistic work as defined under the Indian Copyright Act, 1957.[i] The article focuses on the plight of unrecognized artists who depend on their art for daily subsistence as the economic parity within the art community is a sad reality too.
WORKMAN OR EMPLOYEE?
The foremost question to analyze the position of artists under labour law is, whether they are workmen or employees? In BWSSB v. Rajappa[ii] case, three tests were referred to address the issue of “industry” and “workmen”. The three requirements are that the institution should be engaged in a systematic activity, organized by cooperation between employer and employee and for the production of goods and services. In the case of Bharat Bhawan Trust vs Bharat Bhawan Artists Association[iii], it was held that art institution established solely for the promotion of art and expression of creative talent is not “industry” and artists working in such institutions are not “workmen” as no goods and service are being produced. Thus, art centres and artists were denied shelter under the Industrial Dispute Act, of 1947. In Re National Insurance Act, Re Lithographic Artists, Re Engravers[iv], it was held that just as an artist who paints an original picture, a lithographer is employed in the labour of the brain and intelligence, and not in manual labour. Although as stated in the case of the Burmah Shell Co. v. Burmah Shell Management Staff Association[v], there is a distinction between “employee” and “workman”. A person may be employed because he has artistic qualities that lead him to create something wanted in the shape of a creation of his own, he is employed so that employer may get benefits from his creative faculty. Thus, this settles the question for artists employed by art institutions.
Another important question in the field of labour law is the categories of workers, Employees, and Independent contractors. The latter are free to exercise their discretion and are independent of the employer for tools, discretion, or work. Painters/sculptors were considered independent contractors in early times. The distinction is complicated in the 21st century. Various tests like the test of control and direction, the test of an integrated approach, etc. have evolved with time to distinguish between an employee and an Independent contractor. Most of the time Artists work as independent contractors or gig workers. The art industry is generally modelled on the project-based approach with individual artists signing contracts with Art galleries, collectors, etc. This unpredictability and instability make Artists prone to exploitation (the issues are discussed later). In India, benefits provided under labour law are generally provided to employees. The unorganized sector, like that of the art industry, is usually marked with exploitation, poor work stability, and the absence of social security system.
ISSUES FACED BY ARTISTS IN THE ECONOMIC SECTOR:
When we consider the world of art as a company or industry, it is clear that several issues exist.
1. Odd working hours- An artist is known for his art and not the amount of time and energy that goes into creating it. Artists are subjected to unreasonable work hours. This issue also disincentives women in the art sector.
2. Health issues- Art comes in various forms and some art forms require precision and long working hours which might lead to a lot of health issues. Many artists suffer from “overuse syndrome” which is injuries caused by continuous effects on tissues of repetitive physical stress and it exceeds physiological limits. Neural impugnment and focal dystonia are also serious health complications faced by artists over a long period of time.
3. Project-based- Artists (Visual, digital, sculptors), etc. work as freelancers, gig workers, etc. They are part of informal and unorganized sectors and that leads to exploitation due to lack of collective bargaining powers and lack of work stability.
4. Exploitation through contractual terms- Artists have a moral right to resale share under Section 53A of the Indian Copyright Act, 1957. This right has implementational and interpretational issues, especially after the Intellectual Property Appellate Board (the body that decided royalty rates and decides disputes) has been abolished. Most of the time, artists add this clause in the contract itself. Sometimes this leads to the exploitation of artists in the primary market as they are offered lower prices in the primary market.
THE PARADOX OF UNPAID LABOR:
There has been a debate around the concept of artistic labour. Art is work and its production is linked to the capitalist mode of production, it is part of its economy and structured by wage labour. The artistic value is in the “end” product and not the “means”, the process that required labour to get through it. This leads to a major problem. Artist’s labour is invisible, or at best ascribed to artistic genius, talent, or creativity. Although the field of art provides artists with autonomy in determining the parameters of their work as a skilled profession, it has also fostered an exploitative system characterized by irregular employment, wage inequality, and unreliable job security. The perceived exceptionality of artistic work tends to overshadow the injustice of the often-unpaid labour that keeps art as an institution afloat.
EXISTING REMEDIES UNDER THE LABOR LAWS:
In most cases, the remedy available to Artists is limited to tort law and contract law. The Unorganized Workers’ Social Security Act of 2008 redefines the scope of the term “Workers” and it includes all types of workers, not only those who have a fixed employer. A ray of hope was seen in this regard when the Code on Social Security, 2020[vi] was introduced. Code on Social Security, 2020 legally recognizes ‘gig workers’ and ‘platform workers'. It recognizes gig workers as a person who performs work or participates in a work arrangement and earns from such activities outside of the traditional employer-employee relationship,[vii] whereas, platform worker means a person engaged in or undertaking platform work.[viii] The code offers social security benefits to members of the unorganized sector like life and disability cover, accidental insurance, etc.
The art and interests of Artists in India are protected under the Indian Copyright Act, 1957. The paradox of unpaid labour is quite evident in the copyright regime as it provides moral and economic rights to the artist w.r.t. the final product (the art) but doesn't provide for vital economic and social considerations which need to be considered during the process of creating it. Any individual or group of individuals involved in the economic sector is entitled to certain basic human rights like suitable working conditions, adequate pay, work stability, etc. Art as a profession is project-based, the employer frequently exploits the artist working for them. This is because, unlike most other organized employment sectors, artists were not covered by any labour law that provided a protective framework. However, with the passage last year of the Code on Social Security, 2020, this may change. The code recognized the modern labour market and legally recognized them as “gig workers” and “platform workers” The Code gives the State the authority to establish social security schemes and safety nets for such workers.
*The authors are students at National Law University, Jodhpur, and Institute of Law, Nirma University, Ahmedabad respectively.
[i] The Indian Copyright Act,1957 Section 2(c).
[ii] 1978 AIR 548.
[iii] Appeal (civil) 5614 of 2001.
[iv] (1913) 108 LT 894.
[v] 1970-II L.L.J. 590.
[vi] Code on Social Security, 2020.
[vii] Code on Social Security, 2020 Section 2(35).
[viii] Code on Social Security, 2020 Section 2(61).