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Learn the ways “artist” is defined to access studio space, write off expenses, claim copyright and more.
By Daniel Grant
Can we define art? Leo Tolstoy called it “a means of union among men, joining them together in the same feelings, and indispensable for the life and progress toward well-being of individuals and of humanity”. But, can we define who is a professional artist?
When Labels Matter
The need to identify who is or isn’t a professional artist arises all the time. It can be required to qualify for studio or residential space reserved for artists. It’s needed when artists are counted in a census, required to pay income taxes, or applying for funds. And there are the surveys by various researchers to track items such as trends in artists’ employment, or the economic benefits of creative communities. However, compared to other occupations that require a license, permits, or even reported income, the label “artist” can be subjective.
Proving that one is a serious, professional artist matters more than just for bragging rights. So let’s examine a few potential definitions.
An Artist’s Job is Art
The federal government identifies artists as professionals in two separate ways. The Census Bureau makes a broad national survey every 10 years. And it inquires about sources of paid employment through the companion American Community Survey. This data is used by the Bureau of Labor Statistics, the National Endowment for the Arts, and other agencies.
People with more than one source of income are counted in the job where they work the greatest number of hours. Because the focus is on paid employment, rather than the amount of time spent in the studio or a desire to sell art, many artists are likely to be overlooked, and therefore not counted as artists. On an individual basis, this doesn’t have an effect, but there is a national policy downside. Legislators are less likely to appropriate money to the arts, or to create laws that benefit artists if this group is significantly undercounted.
Artists Turn a Profit on Their Art
The Internal Revenue Service takes a narrow view of who qualifies as an artist. There are nine criteria that the IRS applies in order to separate professionals from hobbyists. Professionals may deduct their expenses, and hobbyists may not:
- Is the activity carried on in a businesslike manner?
- Does the artist intend to make the artistic activity profitable?
- Does the individual depend in full or in part from income generated by the artistic work?
- Are business losses to be expected, or are they due to circumstances beyond the artist’s control?
- Do business plans change to improve profitability?
- Does the artist have the knowledge to make the activity profitable?
- Has the artist been successful in previous professional activities?
- Does the activity generate a profit in some years and, if so, how much of one?
- Will the artist make a profit in the future?
An artist doesn’t need to answer “yes” to every question in order to legitimately deduct business-related expenses. These can include art supplies and equipment, studio rental, travel, educational expenses, and promotional costs. But the IRS demands proof that an artist make an effort to earn a profit in three out of five years.
Artistic credentials, which don’t usually matter to collectors and critics, may help an artist make a case that he or she is a professional for tax purposes. These include earning a bachelor’s or Master’s degree in fine arts, membership in an artists’ society, experience teaching art, inclusion in an art directory, and an exhibition history.
Professional Artists Require a Studio
There are several agencies that certify an artists’ eligibility to rent or buy live-work loft apartments with residential and studio space. Artist certification committees determine an applicant’s need for space and qualifications as a serious, rather than professional, artist. According to the artist certification guidelines of the Boston Redevelopment Authority in Massachusetts, “Any artist who can demonstrate to a committee of peers that they have a recent body of work as an artist, and who requires loft-style space to support that work, is eligible.” The definition these committees use is quite flexible, focusing on subjective factors.
The Artist Certification Committee of New York City’s Department of Cultural Affairs looks at the “nature of the commitment of the artist to his or her art form as his or her primary vocation”. This is used for evaluation rather than a set of hard numbers — exhibitions, sales, awards, memberships — which would tend to disqualify most applicants.
Artists as Independent Contractors
Artists generally are self-employed. They work in their own studios, set their own hours, and create objects of their own making. But sometimes they do work for someone else. For instance, they may act as a studio assistant or be commissioned to produce an artwork. In these circumstances, the definition matters a lot, principally because of the issue of copyright. An employee gets a salary, works set hours, and is given explicit instructions on how to fulfill tasks. Consequently, the creative work that the individual performs on the job all belongs to the employer.
It is not uncommon, however, for artists not to pay taxes for their assistants by calling them independent contractors, rather than employees. Assistants who are independent contractors, therefore, may have a legal basis to be considered joint authors of the artists’ work if they were involved directly with the finished pieces. This is a right that employees do not have. That joint authorship would be dependent upon the degree to which the assistant could prove that his or her original ideas and decision-making is part of the final work, according to Joshua Kaufman, a Washington, D.C. lawyer who often represents artists. There have been a number of lawsuits brought by former assistants for joint copyright ownership of works. But they have all settled out of court.
Artists Call Themselves Artists
According to Marcel Duchamp, the artist defines art. And it seems increasingly true that nowadays artists also define who and what they are. Definitions by nature are confining and restrictive, while art and its makers seek to be expansive and inclusive. It may be simpler to state what makes an artist a professional than what defines an artist. And part of an artist’s job is to understand how artists are seen and what is expected of them — whether that be a certification committee that wants to see the art, a funding source that wants to read an artist’s proposal, or the government that wants to see receipts.