Artists, the original gig economy workers, have more rights than they think

By Creativz

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By Sarah A. Howes

The gig economy has long been the model for many artists. Musicians have always had gigs; it’s just that now, apparently so does everyone else. According to the NEA’s Artist and Arts Workers in the United States study, “American artists are highly entrepreneurial; they are 3.5 times more likely than the U.S. workforce to be self-employed.”

Even so, things are not same-old, same-old for artists in this new economy of ours. There are certain “once-employed” artists who are now being pushed into contract work (e.g., journalists). Let’s call this the “shifting creative economy.” There are creative entrepreneurs being pushed into low-value contest work (e.g., graphic artists) — the “lost creative economy.”  And finally, employers are just classifying some workers as contractors when they really aren’t — the “sidestepping creative economy.” Although there is potential for change with more ethical practices on the part of businesses and individuals in all three, this final arena is where I think we have the most potential, from a legal perspective, to create large-scale change for artists’ livelihoods.

The shifting creative economy: This situation is partly created in response to the lost revenues caused by copyright infringement or declining subscriptions; the newspaper industry being a noticeable example. In 2000, there were 25,593 staff reporters and writers hired by U.S. newspapers, but in 2012, there were only 17,422 — a 32% drop over 12 years. Nate Thayer, a freelance journalist, was once offered an annual salary of $125,000 to write for the Atlantic, but now the same magazine only offers freelancers as little as $100 per story. It’s hard to place blame on the newspaper industry in this scenario — formerly one of the most profitable creative industries in America, newspapers now struggle to pay labor costs because the content itself is losing value in the digital marketplace.

The lost creative economy:  This trend is driven by platforms like 99designs, or other similar content mills, that promise creative products at rock bottom prices.  It works like this: prospective clients post detailed requests for a new business logo online, and then hundreds of graphic artists submit logos in the hope of being the one selected. Clients can even go back to the “still not hired” designers to request modifications before making a final decision. According to the NO!SPEC campaign, these types of logo mills have designers cranking “out massive strings of poorly conceived, ineffectively executed, and in a growing number of cases, plagiarized work from other professionals in order to win as many ‘prizes’ as possible.” This may work out well for the client, but the vast majority of designers earn nothing for their labors. These types of gigs provide little security, little or no pay, and leave a contractor without the creative, professional, or personal freedom that entrepreneurship is supposed to support.

The sidestepping creative economy: This involves businesses misclassifying people who are actually employees as contractors to save money. Due to generations of labor advocacy, employees are eligible for more livable wages, health benefits (sometimes), and access to many state and federal employment laws that independents miss out on, including:

• Unemployment insurance
• Minimum wage standards
• Family medical leave protections
• Workers’ compensation
• Protection from sexual harassment
• The ability to collectively bargain under the National Labor Relations Act

Determining misclassification is difficult, because there is no single body of law to follow. It is not just about whether you work 9 to 5, have a supervisor who assigns daily projects, or work full or part time. A dancer or an actor may be an employee under one state or federal law, and a contractor under another law or in another state. Misclassification might be at play when an arts organization has an ongoing, involved relationship (or even a substantial engagement) with one of their artist contractors.

When deciding a worker’s classification, a judge will ask questions like whether the hiring party has the right to control the work, provides the tools to do the work, and whether the work done is part of the regular business of the company. While every law differs in terms of which facts are most persuasive, courts are usually concerned most with either the amount of control the hiring party has over the worker, or how economically dependent the worker is on the hiring party. Laws also differ in their underlying policies. For example, while the Fair Labor Standards Act (FLSA), which sets minimum wage and overtime pay, seeks to make most workers employees to ensure basic labor protections, copyright law actually hesitates before calling a worker an employee, because doing so strips the artist of their copyright ownership.

Employers automatically own the work of their employees, but not the work of their contractors. Courts are hesitant to take away a contractor’s copyrights if the creator was not paid like a traditional salaried employee. To own the copyrights to a contractor’s work, a hiring party needs to get a written agreement, signed by the artist, that assigns the copyrights to them. It is also critical that hiring parties and artists understand the legal consequences of an assignment versus work made for hire, and even what types of art forms qualify a contractor’s work for the work made for hire doctrine. The work made for hire doctrine takes away a visual artist’s rights of integrity and attribution, and the right to prevent destruction of artworks of “recognized stature.” It also denies all artists the right to reclaim once sold copyrights by way of a termination notice filed with the U.S. Copyright Office.

You might be asking yourself what you or your arts organization can do about all of this. Well here are my ideas:

1. Internal audits
   Art businesses of all sizes should perform internal audits of contractor relationships to evaluate whether roles should be clarified or re-classified. This audit should take into consideration the various employment and labor laws, as well as the company’s creative process and the worker’s role in producing copyrightable content. I believe that hiring contractors just to save money, even when it is legal, has a negative impact on the creative products. Staff artists can dedicate the time to mastering their craft, incubating ideas, and performing critical edits. In an interview I had with filmmaker Tiffany Shlain (who employs, rather than contracts, four filmmakers), she pointed out that employees also develop an irreplaceable “institutional knowledge.” It might be cheaper in the short term to hire contractors, but in the long term, this decision might harm the quality and the sustainability of the work itself.
2. Advice, support, education
   Artists who believe they are wrongly classified should look to organizing groups for professional advice, advocacy support, and legal education, such as a union, trade association, or the Freelancers Union. Reporting misclassification might be all an artist needs to do. State and federal agencies may take it upon themselves to resolve the issue with the employer, saving an artist a considerable amount of time and legal costs.
3. Collect and share data
   Groups that are dedicated to bettering the lives of American artists — like arts councils, industry affinity groups, advocacy groups, funders and service organizations — ought to collect data on employee classification in the arts to provide policymakers with a clearer picture of possible misclassification. Usually artist surveys ask about employment either to see if artists get paid as an artist at all or if they work full-time or part-time in their arts job. But these surveys should also investigate the quality of artists’ work. Is the artist being classified as a contractor when he or she is really an employee? Does the work provide health benefits, paid time-off, or at least minimum wage?  If they lost their job, could they get unemployment benefits? If they were injured on the job (say building a set), could they collect workers’ compensation? If properly collected, this information could give advocates more data to work with.

I want to be careful to not shame arts organizations with small budgets that rely on artist volunteers or workers who accept modest stipends. Lines need to be drawn in a way that still allows exceptions for such meaningful, necessary opportunities (and even unpaid internships that are truly educational and that benefit students). And artists have every right to let others use their copyrighted works at no cost, so long as the choice is theirs. However, for the artists who are behaving like employees, giving companies valuable labor, and receiving none of the benefits of being either an employee, a student, or an entrepreneur, something needs to be done. Otherwise we are either throwing away the critical workers’ rights that Americans have fought for since the Great Depression, or suggesting that these rights don’t apply to artists.

A system that works better for everyone requires that artists be invited to conversations about where the American workforce is going. After all, artists might be able to help policymakers come up with some creative solutions!

Disclaimer: I will be a licensed lawyer as of May 6, 2016. I also work in copyright law, not employment law. The views expressed are my own, and are not attributable to any past, present, or future employers. My knowledge of this area of law has developed through my experiences of working with artists and through personal legal research. Please refer to local attorneys and legal services organizations for assistance in understanding what exactly makes a worker an employee under the various laws at play.

Final note: I paid a friend to edit this article at her professional rate, and it was worth every penny.

Photo by Ryan McGuire via StockSnap / Creative Commons Zero / CC0

Published April 21, 2016