Artist and employee: revisiting the employees’ status through the case of art-based firms

Contemporary firms compete ever more on creative and innovative capabilities. In this competition, previous research has outlined the strategic role of employees' competencies and "human capital". Still, while being potential valuable creative employees, artists paradoxically hardly find their place in business enterprises. Many reasons have been put forward to explain this paradox but the role played by law has rarely been analyzed. This paper aims at filling this research gap. We argue that neither the legal status of "employee", nor the "author's rights" system are satisfying to specify the position of an artist in a business organization. Drawing on the results of a longitudinal case study of an art-based firm, we contend that the legal status of an "employee" does not capture an essential role of the firm, which lies in the collective building of individual "potentials". Yet, the notion of potential is essential to understand how a firm can contribute to extending the capacities of an artist. Since such contribution goes beyond the payment of wages or copyrights, it thus appears that the artistic activity is not only compatible with a firm project, but may also be actively supported by the collective action of the firm. We further argue that law can foster such development of creative firms, in particular by introducing new norms and new corporate standards. These corporate standards can indeed play the role of both cognitive frameworks and instruments to facilitate joint and unbiased agreements among parties. We then conclude with some legal implications of these assertions.