Defining the areas above and getting into detail which we'll do below.
If It Doesn't Sell
I asked myself this very question and realized after some guidance that this (selling), along with everything in life, is all about timing. It's got to be the right time for the consumer. Just because your piece doesn't sell doesn't mean that nobody likes it. It simply means the right buyer isn't in the right place yet to buy your art. So just be ready and have your piece ready and available for sale so when the buyer is ready, that sale will come.
Another avenue for selling your art is at doll shows and events.
By Peter Jason Riley, CPA
Please be mindful that tax information changes rapidly, this article is intended to be a generalized guide for the artist. For up to date tax information please contact a tax professional.
Artists and taxes don't seem to mix very well. Taxes and administrating the business of art are often last on the list of concerns for the visual artist. The artistic temperament simply does not interface well with the exacting rule-filled world of federal and state taxation. Artists tend to avoid the whole matter and consequently leave themselves vulnerable to bad advice. The secret to overcoming this phobia is to develop an understanding of the mechanisms of the tax code and some simple, effective ways of complying with this onerous task. I often use the analogy that you may not need to know how to fix your car but it is helpful to know how it basically works. In so doing you will pay less in taxes and you will be less likely to fall prey to erroneous tax information and disreputable or ill-informed advisers.
A majority of visual artists are considered "self-employed" in regards to filing their taxes. In a legal and taxpaying sense this means that your "business" as an artist and you as an individual taxpayer are one and the same. There is no legal separation, such as one would have in a corporation, partnership, LLC or other legal entity. The artist usually files a "Schedule C" as part of their regular 1040 income tax form, which is where you report your art income and expenses. The artist may file a form 8829 for the home office (studio) deduction and will also be required to pay self-employment tax (Schedule SE) on your net income (profit) as well as federal income tax. All these forms are part of the year-end 1040 income tax filing. As a self-employed artist, you will usually be required to pay estimated quarterly taxes using Form 1040-ES if your Federal tax liability is over $1,000 for the year.
The goal is first and foremost to lower your taxes! The artist has a number of tax deductions that are unique. In the balance of this article I will try to break them down to their component parts to make the issues understandable. For the IRS all deductible business expenses are those that are:
1. Incurred in connection with your trade, business, or profession
2. Must be "ordinary" and "necessary"
3. Must "NOT be lavish or extravagant under the circumstances"
It does not take much analysis to see that these guidelines are not an exacting science. The artist has a large group of basic expenses that easily fit the above criteria: travel (hotel, meals, etc.), vehicle and transportation costs, equipment, art supplies, home studio expenses, legal and professional fees, gallery costs & commissions, etc (see our attached list). Let's review some of the more complex and contentious deduction areas.
Is Being an Artist a Business?
The first hurdle visual artists often have is the question regarding whether their "art" is indeed a business for tax purposes. The heart of this matter is whether the I. R. S. sees the endeavor as a real "business" or as a "hobby." Because the artist's ventures often (sadly) yields losses, the question then becomes when does the tax code determine an enterprise to be a true business as opposed to a hobby. Here's how you may be affected by these so-called "hobby" rules.
Although you must claim the full amount of income you earn from your hobby, hobby-related expenses are generally deductible only to the extent of income produced by the activity. So if you don't generate any income from your hobby, you can't claim any deductions. What's more, even those hobby expenses which can be deducted are subject to an additional limitation: they are considered miscellaneous itemized deductions on Schedule A, which are deductible only to the extent that they exceed two percent of your adjusted gross income. In contrast, if your activity can be classified as a bona fide business, you may be able to deduct the full amount of all your expenses by filing a Schedule C. In short, a hobby loss won't cut your overall tax bill because the tax law stipulates that you can't use a hobby loss to offset other income.
Converting your hobby into a bona fide business means you can deduct a net loss from other income you earn, such as wages and salaries. How does the IRS determine whether your activity is a hobby or a for- profit business? The Internal Revenue Service publications discuss these nine criteria:
1. Whether you carry on the activity in a businesslike manner.
2. Whether the time and effort you put into the activity indicate you intend to make it profitable.
3. Whether you are depending on income from the activity for your livelihood.
4. Whether your losses from the activity are due to circumstances beyond your control (or are normal in the start-up phase of your type of business).
5. Whether you change your methods of operation in an attempt to improve the profitability.
6. Whether you have the knowledge needed to carry on the activity as a successful business.
7. Whether you were successful in making a profit in similar activities in the past.
8. Whether the activity makes a profit in some years, and how much profit it makes.
9. Whether you can expect to make a future profit from the appreciation of the assets used in the activity.
The primary determinant is your ability to make a profit at what you are doing. If your efforts result in a profit in three out of five consecutive years, your activity is presumed not to be a hobby by the IRS. If you don't meet the three-out-of-five years profit rule, is all lost? Not necessarily, if you can prove to the IRS's satisfaction that you have made a genuine effort to earn a profit and that the reason you are not successful is related to special circumstances, the IRS might agree that your art is, in fact, a business. This is often true for individuals engaged in the arts, where profits and successes are difficult to achieve. To increase your chance of gaining the IRS's recognition of your business, I recommend that you run your activity in a professional, businesslike manner. Doing such things as having business cards and stationery printed, maintaining a separate business checking account and telephone number, keeping accurate records of the time you put in, and carefully documenting all business-related expenses. The Internal Revenue Service places great credence on computerized accounting records as evidence of the artist's "businesslike" intent. Keep records of all show entries (even including ones that you don't get into) and all gallery activity. In short anything related to attempts to sell your artwork.
Income for the artist includes amounts paid to the artist for their artwork. Income for the artist also includes prizes, awards, fellowships, and endowments received. There is also the concept of "taxable income other than cash." This includes trades of art between artist and other individuals. For example: an artist agrees to "sell" a painting to another artist by exchanging artwork. The painting that the first artist gives up "costs" $75 (the cost of paint, canvas, and framing). The artwork received has a market value or price of $1,000. The first artist will have a taxable income from this transaction of $925 ($1,000 less $75). In other words the artist received something worth $1,000 but only paid $75.
Travel & Meals
The artist is allowed to deduct all expenses associated with overnight business travel. These include meals (only 50% deductible), hotel & lodging, reasonable tips, dry-cleaning, phone calls home, etc. Overnight travel is roughly defined by the IRS as travel that is far enough away from home so as to make it inconvenient to return home at night. Travel could include expenses related to gallery visits, openings of shows, delivering artwork, art fairs, etc. and will include many of the expenditures made on such trips. The other question often asked is the travel deduction for mixed vacation/business travel. As long as the trip is primarily business then deductibility will be maintained. For example, what if the artist has a five-day trip to NYC for a gallery opening and outdoor art fair that includes a two-day stopover in Philadelphia on the way home to visit a friend. In this case the entire NYC trip would be deductible but the expenses related to the Philadelphia stopover, which was personal would not be. Since maintaining individual meal receipts is inconvenient, consider using the IRS "meal allowance" for deducting meals when traveling. This "meal allowance" (adjusted annually by the IRS) ranges from $30 to $40 per day depending on the location. In practice this means that receipts for meals are not required as long as the travel itself can be substantiated. This "allowance" includes all three meals and incidental expenses for the day. Travel for spouses or dependents are not allowed unless they are employees of the art business.
Meals are deductible (remember, only 50%) as part of the overnight travel and they are also allowed as a separate (non-travel) deduction when they meet the criteria of "ordinary," "necessary" and business related. This means that the meal must include direct business discussions. This can mean lunch or dinner meetings with agents, fellow artists, gallery owners, etc. If a direct business purpose is clearly documented then the deduction is allowed. These meals could include talks on potential gallery showings, museum exhibits, future sales, Website design or setup, and meetings with lawyers or accountants. The best place to keep records for these expenses is in an appointment book. Log into your book who was present, and briefly the nature and substance of the discussion. I often suggest that you keep a copy of the person's business card as further substantiation.
Automobile & Vehicle Expenses
The use of an automobile can be one of the most common and largest deductions for the artist. The automobile use expense can be taken in two ways. The first method is by using the IRS "standard mileage allowance." In 1999, this annually defined allowance took a historic decline to .31 cents per mile beginning on 4/1/1999 (it is .325 cents a mile for the first quarter of 1999). To take this deduction you do not need receipts, only records that show the distances driven and the business purpose of the trips. These would include travel to galleries and museums; trips to the art supply store, classes, etc. The best tool for tracking and calculating this expense is your appointment book or calendar. If your calendar has a record of business travel it can be used as a tool to estimate your mileage deduction (odometer readings are appreciated by IRS but NOT required). The second method is to write off direct expenses. In this method you actually depreciate the cost of the vehicle (over 5 years) and then tally up gas slips, repairs, insurance, etc and use that amount as a basis for your expense. This method requires more work and organization. If you were writing off a cube van or other larger vehicle, the second method would be preferred. In my practice I often find the mileage allowance method generally yields the highest deduction for straight automobile use. In any case, the IRS allows the taxpayer to calculate the best method year by year and take the one that yields the highest deduction (within limits).
Equipment purchased is generally "depreciated" and written off over 5 or 7 years on Form 4562. Depreciation is a technique for expensing or writing off purchases that have a useful life of greater than one (1) year. In other words, a kiln or printing press is intrinsically different in nature than clay, a tube of paint, brushes or photographic chemicals. Supplies such as inks, film, canvas, welding material, etc. will be written off (or deducted) in the year of purchase. Most art equipment including computers is written off in 5 to 7 years; these "depreciable lives" are defined in the IRS code. The main tax strategy when it comes to depreciation is the use of what is often called "the section 179 election." The IRS allows taxpayers to "expense" up to $18,000 of equipment in any one year. In this case the potter is allowed to write-off his/her $5,000 kiln in one year rather than wait seven years to do it. Remember this "section 179 expensing election" only accelerates the deduction into one year. Either way, the artist is able to write-off (depreciate) the full cost of the purchase.
The Home Studio
The home studio (office) has been a contentious subject in my profession for a number of years. With recent legislation, the home office has clearly returned to its rightful place as an allowable deduction for most artists. If you use a room (or rooms) in your home exclusively as your studio, you will probably qualify for the home office deduction. The use of the room can be as a studio, storage area for equipment and art, record keeping for the business, marketing, etc. The home office is a fairly straightforward deduction to calculate on form 8829. It simply utilizes a formula based on the square footage of the business portion (the home studio) of your home vs. the total square footage of the house or apartment and then applies that percentage to all associated costs. The costs could include rent, mortgage interest, real estate taxes, condo fees, utilities, insurance, repairs, etc. Other rules that come into play here include the "exclusive use" requirement. This rule states that the home office must be used only for the business - no "mixed use" allowed. In other words the studio cannot be a part of a larger room such as the living room unless the business part is partitioned off in some way. The home office can be a powerful write-off in that it allows the artist to deduct a part of what were non-deductible personal expenses. Example
Remember that this outline is not intended to be the whole story. The Federal Tax Code is very complicated and your specific applications should be reviewed with a tax professional before filing your taxes. The visual artist is unique in the world of taxes. When you are shopping for a tax preparer please make sure they have some experience in taxation for artists. Organizing your numbers using our attached work sheets (and this article) will make the process easier, cheaper and will help you maximize your deductions. Ask your preparer about other tax saving strategies for self-employed individuals such as retirement plans, health insurance and the timing of deductions.
A Note from Loretta
Peter has allowed me to use his article. I think you will find it to be very thorough. Taxes can be very confusing and I want to make some additional points.
Claiming something as a tax deduction, doesn't mean its "free". It only means that it reduces your tax liability. ie- you make $1000 a year and have $900 in expenses, you are only taxed on the remaining $100. If you are just starting out, you generally have more in expenses than income. If you have another job, you can claim your losses against your other salary. ie- you spend $2000 in setting up your studio and only make $500 that year. You can claim that loss of $1500 against your total income. So if you make $25,000 from another job, you would deduct the loss from your business against that, reducing your tax liability to only $23,500. You can only suffer a loss for 3 out of 5 years before the IRS may decide you have a hobby and not a business so be aware.
If you make more than $400 income from your dolls, you must file a tax return.
If you do not claim a studio and make less than $5000 a year from your dolls, you can file a Schedule C-EZ for your taxes. Otherwise file a Schedule C for your business expenses, a form 8829 for your home studio and a 1040. (You cannot file a 1040EZ or a 1040A with a Schedule C) If you've not filed as a business before, print out these forms so you can become familiar with them and understand what will be expected from you at the end of the year. There are some changes in tax laws from year to year but generally they're the same.
Remember that everything associated with your doll business is deductible. eBay fees, Etsy and other selling fees. Computers, printers, ink refills, camera equipment that are used for your business. Software for your business computer including anti-virus software, accounting and tax software, photo programs. Subscriptions to doll magazines, art magazines. DVDs, books, tutorials. Classes and workshops (including online). All art supplies- tools, brushes, paints, clay, mohair, fabric, beads, wire, eyes, etc. Advertising and marketing your art. Office supplies, business cards, postage and packaging supplies. Your website fees and domain name. Travel to shows, classes, retreats, workshops or to meet with other artists to network. A percentage of your utilities, internet, and mortgage. Other things that you may not think of are fantasy movies that you rent or buy for inspiration, music that inspires you, art for your studio. Also the set up of your studio- painting the walls, curtains, furniture, shelving, oven, lighting, etc. Think like a professional. You are a business owner. Give yourself credit for all the expenses related to the management of business and muse.
A deductions worksheet- http://www.artstaxinfo.com/ARTIST/ARTIST~2.PDF
Visit the Small Business Center at the IRS- http://www.irs.gov/businesses/small/selfemployed/index.html
DISCLAIMER: The Fantasy Art Guild is not an agent or representative of the Internal Revenue Service and is only offering guidelines for doll artists to understand the tax laws and maximize their deductions. It is the responsibility of the artist to know the tax laws and to file the appropriate forms. Peter Riley is a CPA and has given us permission to use his article. You can find more information about artists and taxes at Peter's website http://www.artstaxinfo.com/artists.shtml and you can contact him directly for professional advice.
Artists frequently need resources to understand their rights as artists and their responsibilities as artists. I've posted some basic, solid information here to give you a general understanding of some key terms like copyright, public domain, and fair use law. When reading them, remember not only do they protect you as an artist, but you also are expected to bide by these when it comes to other people's work.
A quick introduction- All of your work is protected from the moment you make it. Its yours. Its implied. You can further increase your copyright status by posting the copyright on your website stating all the art is the property of the artist and may not be copied without permission.
These are some notes about copyright law taken from 10 Big Myths about Copyright Explained (and yes, we have permission to post this!)
1) "If it doesn't have a copyright notice, its not copyrighted."
This was true in the past, but today almost all major nations follow the Berne copyright convention. For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyright and protected whether it has a notice or not. The default you should assume for other people's work is that they are copyrighted and may not be copied unless you know othewise.
The correct form for a notice is: "Copyright (dates) by (author/owner)
[All images on the Guild are copyrighted. Our notice is at the bottom of each page. You should do the same for your website.]
2) "If I don't charge for it, it's not a violation."
This is False! Whether you charge can affect the damages awarded in court, but that's main difference under the law. It's still a violation if you give it away -- and there can still be serious damages if you hurt the commercial value of the property. There is a USA exception for personal copying of music, which is not a violation, though courts seem to have said that doesn't include widescale anonymous personal copying as Napster. If the work has no commercial value, the violation is mostly technical and is unlikely to result in legal action. Fair use determinations (see below) do sometimes depend on the involvement of money.
3) "If it's posted to Usenet it's in the public domain."
False. Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain(*).Explicitly, as in you have a note from the author/owner saying, "I grant this to the public domain." Those exact words or words very much like them. Some argue that posting to Usenet implicitly grants permission to everybody to copy the posting within fairly wide bounds, and others feel that Usenet is an automatic store and forward network where all the thousands of copies made are done at the command (rather than the consent) of the poster. This is a matter of some debate, but even if the former is true (and in this writer's opinion we should all pray it isn't true) it simply would suggest posters are implicitly granting permissions "for the sort of copying one might expect when one posts to Usenet" and in no case is this a placement of material into the public domain. It is important to remember that when it comes to the law, computers never make copies, only human beings make copies. Computers are given commands, not permission. Only people can be given permission. Furthermore it is very difficult for an implicit licence to supersede an explicitly stated licence that the copier was aware of.
Note that all this assumes the poster had the right to post the item in the first place. If the poster didn't, then all the copies are pirated, and no implied licence or theoretical reduction of the copyright can take place.
4) "My posting was just fair use!"
See EFF notes on fair use and links from it for a detailed answer, but bear the following in mind:
The "fair use" exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. That's vital so that copyright law doesn't block your freedom to express your own works -- only the ability to appropriate other people's. Intent, and damage to the commercial value of the work are important considerations. Are you reproducing an article from the New York Times because you needed to in order to criticise the quality of the New York Times, or because you couldn't find time to write your own story, or didn't want your readers to have to register at the New York Times web site? The first is probably fair use, the others probably aren't.
Fair use is generally a short excerpt and almost always attributed. (One should not use much more of the work than is needed to make the commentary.) It should not harm the commercial value of the work -- in the sense of people no longer needing to buy it (which is another reason why reproduction of the entire work is a problem.) Famously, copying just 300 words from Gerald Ford's 200,000 word memoir for a magazine article was ruled as not fair use, in spite of it being very newsworthy, because it was the most important 300 words -- why he pardoned Nixon.
See the DMCA alert for recent changes in the law.
- These days, almost all things are copyrighted the moment they are written, and no copyright notice is required.
- Copyright is still violated whether you charged money or not, only damages are affected by that.
- Postings to the net are not granted to the public domain, and don't grant you any permission to do further copying except perhaps the sort of copying the poster might have expected in the ordinary flow of the net.
- Copyright is not lost because you don't defend it; that's a concept from trademark law. The ownership of names is also from trademark law, so don't say somebody has a name copyrighted.
- Fan fiction and other work derived from copyrighted works is a copyright violation.
- Copyright law is mostly civil law where the special rights of criminal defendants you hear so much about don't apply. Watch out, however, as new laws are moving copyright violation into the criminal realm.
- Don't rationalize that you are helping the copyright holder; often it's not that hard to ask permission.
FAIR USE LAW
This subject is a little complicated. Internet users can download your images for personal use, ie- to put on their screensavers but they cannot use your art without your permission to benefit themselves. This includes posting your art on their websites to promote themselves. They do not have to be getting money directly from the public to benefit from your work. They can be getting revenue through ad sales (links) or receiving benefit to their own career through your work. We all want exposure and its generally accepted that you would give permission to other artists to use your art to promote yourself but no one can use your art without your permission because it is protected by copyright. For example, you might love Tinkerbell and want to post the Disney images all over your website but you are encroaching on Disney's copyright. Even though you may not be making money, their image is copyrighted. It is their property. There is a lot of misinformation out there. Your art images are your property.
Public Domain- A public domain is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include: (1) the term of the copyright for the work has expired; (2) the author failed to satisfy statutory formalities to perfect the copyright or (3) the work is a work of the U.S. Government.
[None of your work is public domain. You are protected even if you post it on the internet. That has nothing to do with "public" domain.]
Patterson and Lindberg described the public domain not as a "territory", but rather as a concept: "There are certain materials - the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers - not subject to private ownership. The materials that compose our cultural heritage must be free for all to use no less than matter necessary for biological survival."(Excerpt from Wikipedia)
Traditional knowledge includes pre-existing, underlying traditional culture, or folklore, and literary and artistic works created by current generations of society which are based on or derived from pre-existing traditional culture or folklore. Traditional culture and folklore tends to be trans-generational, old and collectively "owned" by groups or communities. Often traditional culture and folklore is of anonymous origin and expressions of this pre-existing traditional culture is generally not protected by current intellectual property laws and is treated as being in the public domain. (Excerpt from Wikipedia)
The topic of public domain is very large and once you get the basic concepts, it'll make more sense. I've included this chart for a quick reference. So, to make a couple of examples. "Cinderella" is public domain because the story dates back to 9th century China, with the Grimm Brothers making their own version of it. However, the Disney version of Cinderella is still protected by their copyright so you have to be aware when creating your doll. If you choose to do it in the blue dress and yellow bun, that's your choice, but just know that you are infringing on a copyright. However, the story of Cinderella is not under copyright, though as visual artists, we want our dolls to be recognized for who they are. Another example is the Greek Mythologies. All public domain. Shakespeare is public domain. The Holy Bible is public domain. Most folklore is public domain. If you have an idea in mind, use this chart to get a quick answer. If you need help, email me. :)
Links to help you learn more about copyrights, public domain, and fair use laws
U.S. Copyright Office Website http://www.copyright.gov/
Wikipedia Copyright Law http://en.wikipedia.org/wiki/Copyright
BitLaw: A Resource on Technology Law, Website Legal Issues
Ask a Legal Question https://www.lawguru.com/answers/ask
University of Maryland Information and Library Services on Copyright Laws