Top court to hear art dispute

National Gallery, CARFAC fight over fees

The executive director of a national artists group that is taking the National Gallery to the Supreme Court says the gallery should stop spending money on legal fees and just pay artists their due.

“We find it really frustrating that the gallery refuses to negotiate the copyright with us, because the fee that they pay artists is so minimal compared to their overall operating budget,” says April Britski of CARFAC, the national lobby group that for more than a decade has been battling the National Gallery over copyright fees paid to artists. “Fighting this legal battle has been considerably more expensive than just paying the artists what they deserve,” Britski says.

This week CARFAC, or Canadian Artists Representation, got leave to appeal its case to the Supreme Court of Canada. It’ll be the highest, and presumably final, skirmish in a legal tussle that began 11 years ago.

CARFAC and its Quebec counterpart, RAAV, want the right to negotiate the copyright fees on behalf of artists whose work is reproduced by the gallery in exhibition catalogues, books or elsewhere. Currently the gallery negotiates reproduction fees with individual artists.

“What we’re asking for is to bargain with the gallery to negotiate minimum copyright fees for the use of an artist’s work” — essentially a minimum wage, Britski says. “The minimum is needed, because artists are often asked to work for free, or for very little.”

Gallery spokesperson Karen Colby-Stothart says the gallery welcomes the appeal to the Supreme Court.

“This will bring a high-level court ruling on the issues that we’ve all been tripping up on over the past decade,” says Colby-Stothart, who has recently become CEO of the National Gallery Foundation but handled the copyright file for the past decade as deputy director of exhibitions and installations. “We welcome the clarity this development is going to bring. This is a positive development for everybody.”

Britski says the outcome of the court case only directly affects the National Gallery, but would influence negotiations with other, smaller galleries across the nation.

Several years ago the now-defunct Canadian Artists and Producers Professional Relations Tribunal ruled in the artists’ favour, but that was overturned earlier this year by the Federal Court of Appeal. CARFAC and RAAV subsequently sought leave to appeal to the Supreme Court.

In the past the gallery has maintained that is has bargained in good faith with artists, and that while CARFAC can recommend copyright fees it has no legal right to negotiate minimum copyright fees.