Why American Artists Should Benefit from the Resale of Their Works

From The Art Newspaper:

In the US, authors, musicians, actors, and others in the creative industries have royalties and residuals that reward their enduring stake in the redistribution of their intellectual property, when properly enforced. Yet while visual artists are entitled to royalties on commercial reproduction, there is currently little to no legal recourse for them to benefit from the resale of their work.

For a legacy interest to be codified across the US, legislation implementing a so-called droit de suite would have to pass Congress. And with a new Congress freshly seated on Thursday (3 January), an updated version of the S3488/HR6868 bill, otherwise known as the American Royalties Too Act (ART Act,) is expected to be reintroduced by incoming chair of the House Judiciary Committee, Representative Jerry Nadler (D-NY).

As the US art market continues to swell, the need for support for this bill becomes ever more necessary, especially when it comes to protecting artists with less established markets who can be more easily exploited. Case in point: demand continues to rise for works by many African American artists who have been undervalued and overlooked for decades; many are now finding success late in life yet reap no retrospective reward.

An active artist whose talent is recognized during her or his lifetime can often at least benefit from increases in fair market value, even if marginally. This is evident in the case of artists such as Kerry James Marshall, whose stratospheric rise has led to ceiling-shattering prices for African American artists. Yet when his painting Past Times sold for a record $21.1m at Sotheby’s New York in May 2018, Marshall realised nothing from its sale. Nevertheless, Marshall enjoys the benefit of high primary market sales.

The introduction of droit de suite legislation in the US would help rectify this inconvenience for well-known contemporary artists like Marshall but it would be an even bigger boon for historically disadvantaged artists who have been left out of the American canon of art for reasons of race, gender or other socio-economic limitations. This is especially true of the many artists who lack representation or a presence in the art market until the end of their careers or posthumously.

Consider the Gee’s Bend quilters of Alabama: with no access to the gallery system, many of their artworks were purchased by Atlanta collector William S. Arnett at a time when no viable market existed for their work. In 2010, Arnett donated over 1,300 artworks, including quilts and objects created by other artists, to create the Souls Grown Deep Foundation, dedicated to promoting these artists’ previously unrecognised talents.

Like many artists, the value of the quilt makers’ works has increased over time. But many of the artists have either passed away or are no longer producing works, and thus an improved market came too late to benefit them in their prime. One could cite many examples of this discrepancy throughout history, but the case of the Gee’s Bend quilters feels especially urgent given the artists’ dire economic circumstances in the rural South.

. . . .

By permanently transferring their remarkable artworks to dozens of leading art museums through a gift-purchase model—a process started in 2016 and actively continuing—the foundation can both alter the narrative of American art history to include them and dedicate funds raised to improving the living conditions of artists and their heirs in the African American South.

Artist resale rights are already observed in over 70 other nations in accordance with the Berne Convention for the Protection of Literary and Artistic Works. In the European Union, such royalties are payable for up to 70 years after the artist’s death. France introduced the royalty in 1920; a recent French Supreme Court decision has shifted the burden for paying the royalty to the buyer.

In the US, however, only 31 states currently recognise the right for visual artists to receive royalties from their first sale. The only legislation on the books offering droit de suit protection law is California’s Resale Royalties Act (CRRA) from 1977. Perennially ineffectual, the CRRA is not only limited in scope—royalties must be paid to any descendant within 20 years of the artist’s death—it was effectively struck down in July 2018 by the Ninth Circuit Court of Appeals, which noted that federal law would need to change for such a royalty scheme to be feasible.

Link to the rest at The Art Newspaper


13 thoughts on “Why American Artists Should Benefit from the Resale of Their Works”

  1. I recommend artists hold on to half their work until someone wants to pay top dollar for their new stuff. Then cash in. That’s a much better payoff than 5% of auction capped at 35k.

    God Bless property rights.

  2. It’s still a bad idea as it will be used in ways no one will like.

    If the seller has any say after the sell then it’s not a sale but a lease. Make that official and watch no one want to pay the old ‘sale’ price.

    Another fun bit comes when the ‘artist’ tries to collect every time their art changes hands is when no ‘money’ traded hands (or is claimed to have not changed hands.) The old man dies and leaves stuff to his kids, does the artist get to claim a cut of what traded hands? How about a divorce?

    And then we get to the ‘and for how long’ fun. So how long does a painting have to have current artist info attached in case it’s sold? And if they’ve passed on how long does the estate get to chase the money?

    Another funny thought, would the artist then have to carry the insurance on each piece’s perceived value? After all, it looses all value if destroyed in a fire or such.

    And of course I can’t wait for the house painter to point out that while they were paid to paint a house the house sold for so much more because of the paint job they they deserve more …

    First sale and done. If you can’t get what you think it’s worth don’t sell it. If you think the value of your work has gone up you can always try buying it back and then reselling it for what you think you can get for it (which would again be a first sale!)

    • Royalties and residuals are contracts. They are not laws, as many a writer, musician, actor, and “others” have learned.

      The law provides the same thing for visual or plastic artists as it does for all creatives – the creators (or their heirs) are the only ones who can sign away some or all of the reproduction rights in their work. It also provides that the sale of the original work itself does not convey any right of reproduction. This applies to manuscripts the same as a painting – although the only writers really able to sell those these days are those that took a right turn away from the computer revolution.

      Actually, come to think of it, there are more rights attached to a painting or a sculpture, as anyone who attempts to take a photograph at some museums has learned after much pain. Those museums (and other owners of original works) are still able to control any reproduction of the works, even though they are long past even the most generous copyright protection period.

      • All fine and dandy, but if you’ve ‘sold’ me a painting what rights do you have to me reselling it? Or perhaps I go and burn the dang thing after it comes out that the painter did bad things to their models.

        We weren’t talking ‘reproduction’ rights, but rights to something that has been ‘sold’.

        Though I would love to see what would happen if a painter or gallery tried to just ‘lease’ the object in question – should be quite funny. 😉

        • Absent a contract, I would have no rights to the piece that I sold you. I would, however, reserve the right to laugh at you for buying my execrable artistic effort.

          But a contract can specify just about anything (not contrary to statute, that is – clauses about first born children will be terminated with extreme prejudice, for example). The creator can put anything into a sales contract that they want, and can get the buyer to agree to.

          As noted whenever this subject comes up, the amount that the typical buyer will then be willing to pay, if they must contract to pay the creator a “royalty,” is almost certainly going to be lower, quite possibly zero. A large proportion of art is purchased by speculators – people that look for artists that they think will be big in the future. An even riskier business than the Chicago Futures Exchange.

          • if they must contract to pay the creator a “royalty,” is almost certainly going to be lower, quite possibly zero.

            Many of these complaints are about painters who sold work cheap long ago when they were unknowns. I doubt anyone is going to bother with a contract for some unknown painter.

            • If they did, the terms would probably be comparable to those in a contract for some unknown writer, musician, or actor – absolutely horrible, giving up not only the original work, but all reproduction rights for all time.

              Artists should probably not even push for this. I am minded of Thomas Kinkade. I have a ceramic reproduction as a wind chime right outside my office window, which I paid about $25 more for than comparable ones in the same shop, because the wife absolutely loves his work. An original Kinkade painting is worth quite a pretty penny these days, and his heirs would see nothing from it being resold by its current owner – but they don’t care in the least, because he held on to every bit of the reproduction rights from day one, and exploited them to the max when he became popular.

              • “Artists should probably not even push for this.”

                Odds are they aren’t – it’s the ones in control of the rights (for writers that would be the publishers they signed their work/lives/first born to.)

                This could help slow/stop the resale of used books – so you have to buy their new ones (that are out of stock – so we want you to buy the other book we couldn’t sell.)

                Follow the money to whom really wants this bill. 😉

  3. Once authors, artists etc. enter the grubby world of commerce and want to profit from their creations, they are bound by the normal rules of the market.

    They are not special snowflakes and deserve no special treatment. They need to pay attention to the terms they agree to when selling their works.

    • It seems artists and their advocates consider creatives deficient and incapable of operating in the economy like everyone else. They need special protection.

  4. So, who is going to lay down a legal and enforceable definition of ‘art’?

    I put some pinstripes on my car, then sell it. Do I get a cut from every time it changes hands after that?

    I paint my house and add some decorative frills. Do I get a cut from every successive owner?

    I’m a contractor and build a house. It’s almost, but not exactly, like the other 40 houses I built in the same development. Is it unique piece of art? How about the whole development?

    I customize a motorcycle like on one of those reality TV shows. Do I get a cut from every successive sale? What about if someone puts it on a magazine cover or exhibits it at a paying venue?

    I’m a running for political office. Are the speeches I make while campaigning protected works?

    • I think Ford Motors even employs people who call themselves creatives to design their cars.

      I just built a stool. My design. The subtle angle of the legs contrasting with the stretchers and seat evokes the tension between an increasingly interconnected digital society and brutal 21st Century anomie. I support myself with my art.

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