Alessandra Cianetti / performingborders: I would like to start this interview from what is considered the boring side of our life as art workers: admin. More specifically from that tedious yet scary tool that stresses most people when dealing with formalised work relationships: the contract. Not that I deeply enjoy admin per se, however, the idea of labour without transparency, without a clear understanding of the relationships at play, is to me a not so subtle way of hiding power-relations and maintaining iniqual structures. Therefore, as we operate in an extractive and capitalistic sector, I do look with some excitement to the care that can be built in the admin that links us when we create together and looks at protecting the most vulnerable in the relationship.You can only imagine my joy when I came across the model contract FACT Liverpool commissioned to you! Would you like to tell us more about it, your reasoning around its creation, as well as how you think we can embed care and safety* within our shared admin?
Jack Ky Tan: So, my projects usually start with a kind of flirting between me and an institution. We date. We talk. We look into each other’s eyes. We brainstorm. We enthuse about our coming life together on the project. This was no different with FACT Liverpool. In fact, because I was being invited to be their inaugural artist-in-residence for their Board of Trustees, they went further and were honest about past and future organisational challenges. I felt that I really liked the institution and all the staff. It seemed like we understood each other and that we were on each other’s side.
It is at this point where an organisation will send me a contract to confirm everything we had discussed. The contract I received from FACT Liverpool did indeed confirm the points discussed, but it also included many other clauses that we didn’t discuss. For example, there was a clause that I would indemnify the institution for all damages or legal actions by third parties. Another example typical in a lot of contracts, is that if there was to be a termination of the relationship, it is assumed that it would always be the artist’s fault and the termination clause would detail punitive actions against the artist. But there is rarely a reciprocal clause imagining a scenario where the institution is the defaulting party, e.g., where it doesn’t pay invoices or pays very late, where it breaches equalities legislation, or if it fails to provide the agreed curatorial support. The most bizarre clause, as someone who wasn’t making any works for sale, was one that required me to pay a percentage of any sale price as an agency fee.
You can imagine that after a lovely period of flirting, this ‘prenup’ came as a bit of a shock. Such a contract erases any prior verbal or email consensus (and there will usually be a clause that explicitly states this erasure too) and reboots our relationship into the somewhat hostile and ‘rights grabbing’ one described in the contract. For me, it erases any goodwill too. I imagine that a lot of artists who are more trusting and less legally insecure as me might just sign the contract as is and just get on with enjoying the working relationship. But contracts aren’t bits of admin that are separate from the entire body of communication between artist and institution. They are actually more important than all the other communications because they are speech acts or ‘performative utterances’ as J.L. Austin would call it: words or speech that not only declare but also do and thereby create social or legal reality.
On a very practical level, as someone who also has a background in commercial litigation, I am always aware of the possibility of working relationships breaking down. And when they do, in my limited experience, they are only as good as the stipulations about labour, time, roles, rights or outcomes outlined in the contract. For me, the contract is the ultimate reality of any working relationship. If that contract describes a hostile, adversarial, selfish, self-protecting and defensive relationship, then this is the background hum that pervades the project. However if the contract creates legal subjects who agree to relate within compassionate, empathetic, trauma-informed and considerate parameters that respect mutual rights and responsibilities, then even if things fall apart, they will hopefully fall apart equitably and amicably. To put it another way, if I know that we will fight right, I am able to love well.
As for my contract with FACT Liverpool, when I highlighted all the clauses I had issue with, they immediately agreed with me that the contract was inappropriate for my kind of project and commissioned me to draft my ideal contract. So I set about creating something that I considered to be fair, that was easy for me to read and refer to as a neurodiverse person, and that was jargon free and used humanising language that did not objectify me. FACT Liverpool’s willingness to embrace jurisgenerative or legally creative approaches indicated to me that this was an institution that was worth working with especially when it comes to doing a residency about organisational transformation. FACT Liverpool now uses the contract for all of their individual artist commissions.
A final word about creating a contract that was fair for me. As mentioned above, contracts are not value-neutral as they often articulate adversarial or hostile bargaining positions. But contracts aren’t value-neutral also in the sense that some of us come to a contract from a background of legal trauma. This may be something recent like an insurance dispute, a business partnership gone wrong, a pension fraud or even a divorce (because marriages are contracts too). For me however, as a queer dyslexic migrant person from an ex-British colony in Maritime Southeast Asia, there are also ongoing as well as historical traumas caused by the law from which my own legal subjectivity emerges. For others, their legal subjectivity may be informed by a legal history of sexism, ableism, ageism, or classism, etc. But I believe that consciously or unconsciously, we bring these into any contract negotiations because contracting as a practice is entangled with, significantly for me, histories of legal homophobia, xenophobia, colonialism or racism. So a contract that is fair is one that may not need to directly address these issues, but is alert to their dynamics.
Alessandra: A few months ago, I attended the final Zoom event of your residency at FACT. I was very interested in your comments about the charity structure as being highly problematic. Can you tell us a bit more about what you have found as the biggest limitations of the charity as a model as it is so pervasive in our sector? I am also thinking here at the fact that you, Jade Montserrat and Amy Lawrence created the Global Ethnic Majorities Board Association to both raise awareness and create a network of support for GEM board members whose experience ‘can be isolating, and physically, emotionally and intellectually challenging’. Based on your research, what organisational methodologies and strategies have you found as more inclusive and respectful of the complexities of lived experiences and communal working practices? (I cannot deny that I found quite intriguing your suggestion of programming the ‘death’ of an organisation from its very inception.)
Jack: For organisations interested in social justice (environmental, spatial, disability, gender, racial or other kinds of access and equity), I consider that the charity model presents two challenges. Firstly I consider that the broad role of the charity on a societal level hinders meaningful reform, and secondly, its organisational structure creates colonial and neoliberal hierarchies of power.
On the first point, charities have been around since the 12th century and were created so that the wealthy, the gentry or the established Church could help the poor and needy. This hasn’t changed much in a thousand years. Charities are a way for the have’s to help the have-not’s. However, because charities have been so good at helping the have-not’s over time, it becomes unnecessary to address the systemic inequality in society that created the have-not’s in the first place. I am not talking about individual charities here because I know of many charities that do a lot to address fundamental inequalities. However, on a broad level, charities have the effect of creating a cognitive dissonance in society. In my view they create a false safety net, where one might consider it acceptable to exploit someone or some resource in the course of one’s ‘normal’ work or life because there will be a charity out there that will neutralise the harm one does.
For me, it is impossible to separate the charity from its, if you will, dizygotic twin: the limited liability company. These two forces work in tandem, and often within the same organisation. The director, owner or investor of a company who made a lot of money, say, in plantations, dams, mines, low wage labour or deforestation may return home and give to charity, or even start their own charity. In fact, the main secondary school near where I live was founded in the 18th century as a charity from the wealth amassed by a slave plantation owner upon his death. I often wonder about the psyche of a man who on the one hand enslaved children in life, but in death left the majority of his wealth to educate children via the vehicle of a charitable institution. There are of course contemporary examples of this twinning too, like that of British Petroleum’s sponsorship of the Tate museums for 26 years amid growing accusations of how BP had used this charity to ‘artwash’ its reputation.
So charities and big business seem to keep tumbling and folding into each other. Indeed, in a recent research paper that analysed charitable governance in major arts charities, the writers found that boards of trustees are dominated by aristocratic and business elites. As such, conflicts of interests may potentially arise if charities who wish to critique systemic inequality have trustees who benefit from and prosper in these very systems. More significantly, the neoliberal optics that management elites bring to charitable governance excludes any non-neoliberal reforms that charities could be making in the world since all the performance measures, accountability models and forms of evaluation that the charity uses would be neoliberal.
This leads to my second point about the organisational structures of charities. It seems to me that there is a problem when a group of volunteers is required to be legally responsible for the life and risks of an organisation as trustees, but who only meet four times a year for about a total of 12 hours, plus an away day. It requires a group of trustees with a great deal of social capital, emotional capacity, independent financial resources, and experience to be effective which excludes a large proportion of the population from being trustees. Further in order for a group of volunteers who don’t meet often to govern an organisation, they have no choice but to use time-effective methods of oversight, i.e., neoliberal tools like reports, risk assessments, financial spreadsheets, board/committee meetings. What is assessable through such data is outcome, operational progress, spending, sales, etc. What is hard to assess is the quality of relationships, resilience, happiness, culture, dynamism, trust and relevance to society.
Also, time and time again I observe a bottle-neck or hourglass effect where the salaried Director of a charity is at the squeezed point of the hourglass. The Director is accountable up to a group of volunteer trustees who are unlikely to fully understand the day-to-day workings of the organisation that they are ultimately liable for. But they are also accountable down to staff and stakeholders who they have to manage and whose interests they represent to the Board. Of course it makes sense that when public funds or donations are at stake, there should be independent and objective oversight from a panel who has no financial or beneficial interest in the charity. Nevertheless, this form of oversight creates a peculiar kind of lay audit by a panel who do not necessarily know anything about running an arts organisation. Staff then have to handle Boards so that they are steered towards looking at the right issues or
issues that they can understand, which creates a lack of transparency. Or Board meetings become an unwelcome task that organisations have to perform every three months, making meaningful governance ineffective.
Finally the hourglass format also creates a hero or protagonist out of the Director. They become the focal point on which power, meaning and agency is pinned. This might be fine for old-fashioned organisations committed to a hierarchical worldview where everything hangs on a charismatic leader or genius author. But for civil society and arts organisations who wish to embrace approaches of collaborative accountability, entangled materiality, co-agency, vulnerability and co-creation, the charitable company makes these unachievable through the bureaucratic structure it enforces. Nevertheless I believe that it is possible, working within the scope of the law and good governance, to invent new forms of organisation that will enable us to decouple charities from the values of big business, and to create new operational shapes that resonate better with the approaches we need for the future.
Alessandra: I am very interested in how power relations work outside the formal structures we have been discussing in the previous questions. As we operate within what has been defined as the racial capitalocene**, our sector is permeated with the heavy presence of forms of ‘capitals’ (e.g. social, cultural, racial,..) that play what can feel like an ‘unmeasurable’ yet decisive role within the decision making processes in the intertwined realities of cultural institutions, grassroots organisations, and academia. How do we make those processes visible and people accountable? How can we create a new ecology if the art sector sees ‘value’ and praises (apart from rare occasions***) what is still very much the white patriarchal trope of the lone genius artist, curator, researcher? How can we reframe what we collectively see as value?
Jack: I realise that I have accidentally answered part of this question in Question 2 above by proposing the idea of moving away from the ‘lone genius Director’ towards a co-emergence of directorship. But I feel conflicted here because while I am calling for a new ecology of organising, I am also aware that these ecologies get subsumed into the ‘capitalocene’ as you say, and are appropriated to validate or fuel it. Here new ecologies may be at risk of becoming the hunting grounds for institutions who want to track down the next big game artist or to collect new species of artwork. Of course, new ecologies are emerging all the time in response to, in spite of and within the current neoliberal environment. Philosopher Michel de Certeau had outlined in the 1980s how people reappropriate Capitalist contexts for their own non-Capitalist purposes. And more recently anthropologist Anna Tsing has argued not for an overthrow of Capitalism, but for recognising the ways in which we can and already survive Capitalism and thrive through alternative marginal ecologies.
However, I am wary that making these new ecologies visible is also an act of destroying them. Remember how early marine biologists inadvertently blinded the deep sea crustaceans they were carefully studying with bright underwater torchlights?! On a philosophical level, I also consider how Karen Barad helped me understand that the very act of watching or observing an ecology already entangles us with it as ‘intra-acting’ agents and changes its manifestation. So for me there is a good reason to take things slowly in establishing an infrastructure for new arts ecologies. In particular, for the inhabitants of those ecologies to decide for themselves what to make visible, if at all, and how. The job of those outside, particularly funders in my opinion, is to make space or to step aside for that internal discussion to happen. Then to listen with an openness to receiving any knowledge articulated and evaluating any requests according to the values of that ecosystem and not ones we are used to.
And this act of listening has to be a proactive act of bureaucratic creativity. It cannot be merely a listening out for what you already understand so that you can slot information into predetermined categories of validation. It has to be a form of study because you may be receiving knowledge for which you have no base of reference. I often think that funders/supporters/commissioners should take an archeological approach and appreciate that the knowledge being shared has no accurate meaning outside of its own ecological, community and cultural context. Hence, what happens to value and meaning when a unique arts ecosystem has to be explained in someone else’s words or with someone else’s investment categories of “ambition and quality” or “dynamism” or “cultural communities”? The challenge here is for the arts sector or funder to understand the meaning in its original context and do the work of translating, or at least to do the work of redefining existing categories in such a way that enables a workable translation to manifest in those categories. This requires proactive bureaucratic creativity in a spirit of study.
** Vergès, F. (Chapter 4, 2017). Future of Black Radicalism edited by Gaye Theresa Johnson and Alex Lubin. Verso Books.
*** I’m thinking here of some renowned examples such as the curation of the Indonesian collective ruangrupa for documenta fifteen, Germany, and the Turner Prize 2021, UK, that went to Array Collective.
Notes in answers:
1 – Austin, J. L. (1975). How to do things with words. Oxford University Press.
2 – O’Brien, D., Rees, G., & Taylor, M. (2022). Who runs the arts in England? A social network analysis of arts boards. Poetics, 101646.
3 – By ‘neoliberal’ I mean the foregrounding of free market policies and approaches informed by meritocracy or equality of opportunity as opposed to substantive or meaningful equality. To me, neoliberal organisations also use profit, growth and consumer uptake as the main measures of success and tend also to valorise linear forms of planning or thinking.
4 – Rendall, S. F. (1984). The Practice of Everyday Life. University of California Press.
5 – Tsing, A. L. (2015). The Mushroom at the End of the World: On the Possibility of Life in Capitalist Ruins. Princeton University Press.
6 – Barad, K. (2007). Meeting the universe halfway: Quantum physics and the entanglement of matter and meaning. Duke University Press.
7 – England, A. C. (2020). Let’s Create: Strategy 2020-2030.
Jack Ky Tan uses law, policy, social norms and customs as a medium of making art. He creates performances, sculpture and participatory projects that highlight the rules that guide human behaviour. In Jack’s social practice, he blurs the boundaries between art, governance and consultancy in order to help organisations reform and revision themselves using artistic thinking. Jack trained as a lawyer and worked in civil rights NGOs before becoming an artist. Jack’s practice-led PhD at Roehampton University explored legal aesthetics and performance art. He has taught sculpture at the Royal College of Art and University of Brighton, and politics at Goldsmiths.
This interview is part of On Work, a series of conversations by Alessandra Cianetti (June 2022 – ongoing)
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