Will San Francisco’s Artist UBI Experiment be a Public Domain Expansion?

Will San Francisco’s Artist UBI Experiment be a Public Domain Expansion?

San Francisco has just released the final report of its Economic Recovery Task Force. There are a lot of good parts to it–reducing regulatory burdens associated with housing construction among them–but one of the more curious features of the plan is a UBI for artists:

Basic Income Pilot for Artists: San Francisco is directing nearly $6 million in funding for artists, teaching artists, arts organizations, and cultural workers, including a new universal basic income pilot program for San Francisco artists. The UBI program will provide up to 130 artists with $1,000 a month for at least six months starting early next year. The Arts Commission will also provide arts organizations with funding to reopen safely and will fund the creation of an online Arts Hub, which will serve as a one-stop-shop for artists and organizations looking for financial assistance, professional networking, and employment opportunities. Next week, the Arts Commission will open four other grant programs for artists, arts organizations, and cultural facilities. The Office of Economic and Workforce Development will make $265,000 available to fund artists to paint murals with a public health theme on boarded up businesses and deploy performance artists to promote COVID-safe behaviors in high foot traffic areas. [Emphasis added]

Other commentators have focused on the UBI component of the plan and its broader implications for the UBI debate, but I’m far more interested in what this could mean as an alternative to copyright.

To begin, it is likely that any works produced under this program will belong to the artists. Based on my reading, the $1,000 UBI for artists grant is a (semi-)conditional grant which is not tied to the production of any specific work. Barring any specific language which requires recipients to place their works in the public domain, copyright protection will apply as normal.

The second bolded program ($265,000 for murals) is more interesting. Since it is designed to fund a specific project, is it a work for hire? No. The artists painting the murals presumably wouldn’t be government employees, and since the works aren’t “work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, [to which] the parties expressly agree[d] in a written instrument signed by them that the work shall be considered a work made for hire,” they would own the rights to them as well. The same goes for recipients of NEA grants.

This is certainly disappointing, but a “UBI for artists” isn’t a terrible idea if posed as an alternative to copyright. I and others have made the case that copyright policy isn’t an effective tool to keep artists off the street and is no substitute for a robust welfare state.

However, replacing the subsidy of copyright with one more based on cash assistance is something others have pondered. The most concrete articulation of this proposal comes from Dean Baker, who proposed giving every taxpayer a non-refundable tax credit to be gifted to eligible nonprofits whose works would be in the public domain. 

My preference is for the latter program over a UBI for artists, as it provides greater rewards to those producing more popular works rather than a flat benefit to all who qualify, but the effect of both is the same: taxpayers are providing direct cash assistance in exchange for works available for all to use.

I doubt that the copyright implications were top-of-mind to the SF Economic Recovery Task Force, but if we’re going to lean into de-linking the income of artists from direct sales of their works, we shouldn’t be afraid to dream a little bigger.

I didn't find this helpful.This was helpful. Please let us know if you found this article helpful.
By |2020-10-15T09:35:49-07:00October 15th, 2020|Blog, Intellectual Property|