Silencing in the Sector

As she swivels in her office chair, a look of concern washes over Martha Rans’ face. “There’s a pattern here,” she declares. “People don’t know about the legal advice clinics for the arts. And there’s nobody responsible for making sure they know.” Rans, a lawyer based in Vancouver, has been advocating for arts-workers’ rights for over two decades. Alongside her legal practice, she has been collaborating with us, Aisle 4, a Toronto-based curatorial collective, on Silencing in the Sector, a research project on the use of non-disclosure agreements (NDAs) in the Canadian visual arts sector. 

We initiated the project out of a concern for the growing number of NDAs popping up in our peer circles and engaged Rans as a legal consultant. Starting in December 2023, we embarked on a series of six¹ one-hour interviews in which participants anonymously shared their experiences with NDAs in the art world. As Aisle 4 moderated the discussions, Rans, who is deeply familiar with art-world dynamics, analyzed each participant’s complex situation, shared legal insights, recommended resources, and offered moral support. Together, we began to notice patterns amongst the interviewees’ stories that are symptomatic of larger art-world issues. For Rans, Silencing in the Sector is an extension of her social justice advocacy and her goal of raising awareness of legal resources available to arts workers. For Aisle 4, it is a much-needed interrogation of the culture of silence that pervades our profession. 

NDAs are legal contracts between an employer and employee, traditionally intended to maintain confidentiality around intellectual property and trade secrets associated with a business. They are usually used to prevent an individual from talking about or selling the idea or concept for creative content like video games or software applications. Our project is concerned with the misuse of NDAs, which have been extended to cover practically anything that happens within an organization, including disputes between management and staff or cases of board misconduct. The arts sector is not alone in this overreach, as clauses around confidentiality seem to have become a boilerplate standard for legal agreements; but, arguably, the scarcity model in the arts makes it difficult to find the resources to review and update existing agreements and employment practices, making the impacts of NDAs on the sector more severe.

“I never expected a legal situation to pop up,” one interviewee remarked about their experience at a regional museum. The utter shock of finding oneself in the position of having to sign an NDA was common among participants. They admitted to being unequipped to properly interpret the document and its repercussions, and to being asked to sign it under short (and sometimes false) deadlines without knowledge of how to access legal advice. “We need to prime people before it happens,” Rans noted, adding that systemic and structural changes are needed to improve the situation for arts workers. “Funders need to support access to peer-based support services and take responsibility for these issues, like by sharing the countless number of legal resources available to artists, arts workers, and nonprofit arts organizations.” 

Silencing in the Sector interviewees include artists, curators, and cultural workers who have engaged with arts institutions across Canada such as museums, artist-run centres, publications, festivals, and visual arts programs at universities. During the interview process, each interviewee explained a conflict with an arts institution that led to them signing an agreement that imposed silence. Acknowledging the trauma that may be involved with reliving memories of these difficult situations, we offered free psychotherapy services to all participants in addition to free legal services. Each interview was difficult emotionally. And each one became about more than the NDA, extending to topics of cultural safety; censorship; misaligned values; illegitimate or ill-equipped Human Resource policies; toxic or inadequate boards of directors; gender discrimination; and an overall culture of scarcity in the arts that leads to uncollaborative environments and unrelenting burnout. Participants described their experiences with NDAs and the aftermath as frustrating, depleting, distressing, and confusing.

As non-experts ourselves, we were surprised to learn of the various formats of non-disclosure agreements. In some cases, when a dispute arose, interviewees were pointed back to a clause within their existing employment contract and were told remaining silent was essentially a condition of their continued employment. In other cases, interviewees had received a separate agreement after a dispute, particularly in cases where they exited the institution and were entitled to a financial settlement, which they could only receive upon signing away their right to speak about the experience. Despite the variations in format, the effect is consistent: to require the complainant to stay silent and not disclose any aspects of the dispute, sometimes in perpetuity.  

Unsurprisingly, the participants’ stories are a reflection of the fraught climate of the Canadian art world today. Deep structural issues continue to plague the industry, which attempts to be progressive but remains stratified by class. The pandemic led to upheaval and crisis-related restructuring in many arts organizations; and institutions have been making efforts towards diversity and inclusion within their staff and audiences, with various forms of Diversity, Equity, Inclusion, and Accessibility (DEIA) strategies proposed but rarely properly funded or prioritized. With institutional budgets diminished in the current high-inflation, high-cost-of-living economy, and sector-wide decreases in public funding and philanthropy, arts professionals are increasingly overworked. Often, they do not have the capacity or training to take on more labour, and yet are not in a position where they feel they can push back for fear of losing their employment. With the immense barriers to entering the sector in the first place, artists and arts workers looking for new opportunities risk periods of unemployment or underemployment (in addition to the potential of entering into another toxic workplace). These precarious situations create unbalanced bargaining and tense conditions in which workers are more likely to be asked to sign NDAs. 

As privacy concerns intensify in all areas (including the arts) because of social media, NDAs are becoming more common. The Cut magazine recently named them “the defining legal document of our time.”² In the visual arts in Canada, we often see NDAs used when an employee is terminated or resigns, or when a board dissolves, as an effort to protect an institution’s reputation. In a strange disconnect, an industry that is meant to celebrate open discussion, creative expression, and constructive criticality is muzzled within the very structures where it is meant to develop. This paradox is the root of our research, which is fueled by compounded feelings of anger, exhaustion, and embarrassment of our sector. With countless examples of unjust experiences, wrongful dismissals, and the weaponization of confidentiality language, we are grieving the incredible loss of potential for what our art world could accomplish and grow into—like fruit that rots on the vine. Through Silencing in the Sector, we hope to uncover how the overreach of NDAs (which prevent misconduct and discrimination from being reported) impact growth within the field, exploring the role they play in upholding power imbalances, protecting professional misconduct, silencing workers and creators, and ultimately hindering artistic expression. 

While reviewing our notes from the interviews, several other distinct patterns emerged. One recurring theme was the feeling of shame or embarrassment around signing an NDA. Participants did not fully understand their rights at the time and felt pressure to make a decision within a short timeframe; looking back, they realized they could have refused to sign, advocated for more time to consider the terms, and potentially negotiated the terms to better suit their situation before signing. Another commonality was the experience of devastation over the loss of community and identity when forced to leave a role and/or choosing to leave the sector. One of the most eye-opening patterns to emerge showed interviewees, primarily women and POC, resigning from the sector at a critical moment in their career trajectory, which helps to explain the consistent absence of Canadian artists and arts workers in institutional leadership roles (those who stayed in the arts vowed to never work within an institution again, and gratefully are pursuing independent practices).

One of our key resources for this project is Can’t Buy My Silence, an action-oriented campaign co-founded by Julie MacFarlane and Zelda Perkins committed to ending the misuse of Non-Disclosure Agreements in Canada. The project strives to stop the exploitation of NDAs by restricting them to their original purpose of protecting intellectual property and trade secrets, and includes a petition to the Government of Canada to pass legislation banning the misuses of NDAs by federally funded agencies in cases of harassment, violence, or discrimination. MacFarlane, a lawyer and Professor Emerita at the University of Windsor, has been a key advisor on Silencing in the Sector, sharing insights on how NDAs can perpetuate harm. “I can’t even begin to explain in words the trauma that results from these contracts,” MacFarlane has said. “Every kind of bad behaviour in the workplace is now being treated as if it were a patented trade secret.”³

MacFarlane’s spirit of activism and dedication to making meaningful change have inspired and guided our own project. Silencing in the Sector will harness the interviews we have already conducted and a series of other anonymous testimonies to create a comprehensive online resource intended to educate and empower arts workers, while also imagining new avenues for organizational accountability and worker safety. Scheduled to be published and disseminated in late 2024, the resource will dissect the legal ramifications of NDAs by outlining workers’ rights in situations where they are asked to sign one; by listing mechanisms to navigate difficult situations from both a legal and trauma-informed standpoint; and by identifying key policy changes needed for artists and arts workers to continue in their careers that will ultimately allow our sector to flourish.

“Silencing in the Sector” is funded through the Canada Council for the Arts Sector Innovation and Development program. If you are an artist, curator, or arts worker in Canada who has been silenced through an NDA, whether or not you actually signed, please consider responding to our anonymous online form at SilencingInTheArts.ca. 

Aisle 4 is a curatorial collective based in Tkaronto/Toronto working in social practice and public art. Formed in 2013, they commission artist projects in the public realm that respond to specific communities, geographies, and/or social issues.

1. 28 individuals applied to be interviewed; however, we were limited by funding to six interview participants.
2. Reeves Wiedeman, “Hush-Hush Affair How the NDA became the defining legal document of our time,” The Cut, July 1, 2024, https://www.thecut.com/article/nda-non-disclosure-agreement-popularity.html
3. Paul Hantiuk, “NDAs aimed to protect trade secrets. Now they’re often hiding bad behaviour, says prof,” CBC Radio, May 26, 2023, https://www.cbc.ca/radio/day6/julie-macfarlane-ndas-senate-1.6855610

This article is published in issue 41.2 of BlackFlash magazine. Get this issue