Part II: Why? Framing the Issue.
“Art is a nation’s most precious heritage. For it is in our works of art that we reveal to ourselves and to others the inner vision which guides us as a nation. And where there is no vision, the people perish.”
~Lyndon Johnson, on signing the Arts & Humanities Bill, September 29, 1965.
When discussing my passion for working with artists on their estate planning, a common response from colleagues and other professionals is, “why bother?” Most often people assume the market is too small and, therefore, represents little need. Further, even if a measurable market exists, most assume that artists do not have a desire or the funds to justify the planning. This latter argument is one estate planning attorneys are accustomed to hearing from almost every client, artist or no. The counter argument is always a little education. Educate the client as to why the need exists. “Educator” is one of the many roles attorneys play in their relationship with their clients. This part of the series aims to identify the need by showing that a market exists and defining the reasons why estate planning is so important for artists.
The Market Issue.
“Oh, good. The world needs more singer-songwriters and fewer doctors and engineers.”
I genuinely wish I had a nickel for every time someone rolled their eyes, sighed, or condescendingly said, “Oh, that’s nice,” when I would share with them that I was a professional artist. I would be a very wealthy woman today. Books upon books have been written on the psychology of why this perspective exists and has persisted as long as artists have been around. Although psychological analysis is well beyond the scope of this series, in a nutshell, the prevailing theory is that artists are often seen as outsiders, living on the fringes of society, shunning all the rules by which everyone else is beholden to observe. I find it amusing that it is a common view that there are too many “good for nothing” artists in the world, unless the discussion turns to artists’ numbers in regards to something constructive like economic impact or market share. This view is outdated, and, in a world obsessed with statistical analysis, easy to disprove.
Although it is difficult to estimate the number of artists living in the United States, some hard numbers do exist for artists who are also primarily employed in their craft. For instance, one of the most comprehensive studies ever completed on the artist workforce was released by the National Endowment for the Arts (NEA) in October of 2011. Artists and Arts Workers in the United States updated the Artists in the Workforce: 1990-2005 study previously released by the NEA and analyzed slightly different data sources to paint a more accurate picture of the arts workforce in the United States. The new study identified 2.1 million people working in the United States as of 2010 whose primary job was in the arts.
Los Angeles and New York City are still considered the nerve centers of the arts world in the United States. However, strong secondary markets exist in many metropolitan areas throughout the country including Chicago, Illinois; New Orleans, Louisiana; Albuquerque, New Mexico; Austin, Texas; and Atlanta, Georgia. The Twin Cities, too, hold a significant place in the arts world.
In fact, after completing my MFA, I moved to Minnesota to start a theatre company based on the Twin Cities’ reputation as being the third largest theatre market behind New York City and Chicago. My experience as an Arts Commissioner for the City of Minneapolis working with various artists and arts organizations cemented my future commitment to the market when I began practicing law. For those attorneys still on the fence about whether a market actually exists, consider these figures from the Minnesota State Arts Board’s Art Facts:
- Arts have an annual economic impact of over $1 billion in Minnesota.
- There are more than 30,000 individual artists and 1,600 arts organizations in the state.
- Five of the biggest tourist attractions in the states are arts organizations.
- Minnesota ranks 8th out of 354 metropolitan cities for the arts.
- 60% of Minnesotans are involved in the arts in some capacity.
The answer is undeniably, “yes,” there are a lot of artists out there. Although I am not suggesting that every attorney should target the artist market, a large enough market exists that estate planning attorneys should not be surprised to encounter an artist client at some point in the span of their career.
The Economic Issue.
“’Starving artist’ is acceptable at age 20, suspect at age 40, and problematical at age 60.”
~Robert Genn, Canadian Painter.
Every estate planning attorney is familiar with the arguments that estate planning is only for the wealthy or, alternatively, that it is too expensive for anyone but the wealthy. It is a hill every attorney climbs in explaining that:
- Estate planning is more affordable than most people think, especially in terms of what it protects and what it can save in the probate process if someone dies without a will; and
Tax planning for the wealthy is only one of several other justifications for estate planning. Some reasons to estate plan that are not exclusive to the wealthy include:
- Ensuring that parents have named guardians for their minor children; or
- Providing for same sex couples when the state does not recognize their relationship for purposes of inheritance; and
- Making financial and health care preferences clear and easier for loved ones.
However, from both the artist and the attorney’s perspective, the money obstacle seems to matter more than ever. Surprisingly, even this challenge can be overcome.
The NEA Artists and Arts Workers in the United States study revealed that the 2010 median salaries of artists in the U.S. range from $25,363 to $63,111, depending on the occupation. Of the 2.1 million artists working in the US, 44% are employed part time or part year and 55% are self-employed. Further, there are approximately 264,000 U.S. workers who have a secondary job in the arts, meaning their primary job is in another field and, at the very least, supplements their arts income.
In 2007, The McKnight Foundation funded an economic impact study of the arts in Minnesota which was conducted by the Minnesota Citizens for the Arts (MCA), Springboard for the Arts, and the Minnesota Crafts Council (MCC), in partnership with Americans for the Arts. Artists Count: The Economic Impact of Minnesota’s Individual Artists was based on surveys sent to nearly 20,000 self-identifying artists throughout the state. The Artists Count study found that:
- 24% of Minnesota Artists are employed full time as artists, while the vast majority, 60%, are employed part time as artists and supplement their income with secondary jobs.
- Approximately $843 million in income and revenue went to individual Minnesota artists in 2005, with an average income of $42,352 each.
- Individual artists spent approximately $250 million, with an average of $13,572 each.
Based on this data, artists are keeping up with the average Joe. According to the Social Security Administration, the median compensation for U.S. workers in 2010 was $26,363.55 with a raw average of $39,959.30. Consequently, attorneys and artists alike should not fear artists’ ability to afford estate planning services any more or less than the average American.
The Fringe Issue.
“When our relatives are at home, we have to think of all their good points or it would be impossible to endure them.”
~George Bernard Shaw, Playwright
McCaulay Culkin, Lindsay Lohan, and Michael Jackson’s family troubles are notorious. The divorce rate in Hollywood seems staggering, at least as it is hyped in the media. Vincent Van Gogh, Ludwig Von Beethoven, and Kurt Vonnegut are as famous for their eccentricity and mental health struggles as they are for their art. Family troubles, eccentricity and mental illnesses have been around since the dawn of time. Anyone remember Oedipus Rex? The play is more than 2,000-years-old and rolls all three issues into a long evening of theatre?
These issues are in no way unique to the arts world. After all, without many of these prevalent human struggles, attorneys would not have any work. However, I have found in my practice that some of these issues can be more prevalent with and more relevant to artists than with other clients. Attorneys are encouraged to dig deep when working with an artist client.
It should come as no surprise that parents often struggle with a child’s decision to go into the arts professionally. It is an all too common cliché for parents to want their children to become doctors and lawyers not writers and fashion designers. A child’s decision to take an alternative career path can lead to fractures in family relationships, even to the point of estrangement.
Further, the arts appeal to personality types that may be considered eccentric or, at the very least, colorful to others. As mentioned earlier, it takes a certain type of person to be willing to live on what society deems the fringes. There are even some controversial psychological studies and theories floating around linking artists and mental illness. Regardless of the reason, many artists do not confine themselves to societal traditions or norms including in areas such as marriage, parenting, or even ownership.
When sitting down with an artist client, it is imperative to have an even deeper discussion about values, goals, and family relationships than an attorney might have with more traditional clients. For the artist who walks in the door with little in the way of assets but is estranged from all family, a run-of-the-mill estate plan will not suffice. Often artists have created an alternative family of friends and colleagues who will serve in those traditional roles. In my experience, when an artist client does not already have a substitute network in place, it calls for creativity on both the part the attorney and the client to find a workable solution.
The Control Issue.
“To know how to produce a work of art is to know how to discard the extraneous.”
~Laura Esquivel, from her book The Art of Love.
Amy Winehouse recently released the album Lioness: Hidden Treasures. It was released posthumously and was pieced together from previous recordings that did not make it onto her other albums and unfinished recordings from her anticipated third album. Although many celebrities die without a will, according to U.S. News, Winehouse was smart enough to have her estate plan in order. On the other hand, it is widely known that Winehouse was unhappy with her first album Frank because she felt it did not truly represent her true artistic voice. Although critically acclaimed, one has to wonder how happy she would be with the most recent release.
Winehouse is not unique. Over the years, many artists as diverse as J.R.R. Tolkien and Tupac Shakur have had works released posthumously. This is one of the most common fears shared by my arts clients. Artists regularly discard pieces for not having lived up to their individually determined high standards. The idea of having these cast-offs released into the world and represented as worthy of their unique voice is enough to keep many artists up at night.
The second most common fear shared by my artist clients is that someone they deem inappropriate will control the destiny of their body of work, whether a vengeful estranged family member or someone simply ignorant about the art inherited. A well-established artist with permanent collections in prestigious galleries and museums once shared with me that he had no doubt his family would toss his entire body of work in the trash if he did not have an estate plan. He was estranged from his family, never married, and had no children. If he died without a will, his entire body of work would go to people with whom he refused to share a relationship and who did not understand or appreciate his art.
Above all, art is the unique expression of the artist captured in a particular moment. On that, Faulkner is absolutely correct. Artistic expression is entirely subjective. For artists, control over every element in its creation and exposure from format, to completion, to release is of the utmost importance. True artists are concerned less about their money than they are the quality of their work. Many of my clients are as protective of their art as they would be of a child. It is literally that much a part of their identity. Leaving an artist’s estate to chance should therefore be avoided.
Estate planning is the best place for artists to assert control over their work after death. Further, with estate planning, artists can be as creative in protecting their body of work as they were in creating it. Attorneys are best situated to steward that process and address the multitude of fringe and control issues that may face artists. It is our duty as attorneys to help artist clients see the importance of estate planning to their overall body of work and engage them on a creative level to ensure their artistic vision is carried out when they are no longer here.
Moving into the nuts and bolts of the process, Part III of this series will examine the different parties involved in the estate planning process for artists and the roles they play.