Speculating

21

Dear Artist,

While walking recently through a California olive grove, a budding art collector and I ruminated on love and investing. “I’m an intuitive collector, but my husband likes to research. He wants to learn about the artists and their drives,” she confided. “We have an agreement. Whatever we buy, we must both love it.”

sam-francis_untitled-1962

Untitled artwork, 1962
by Sam Francis (1923-1994)

“As an artist,” she asked, “does it bother you if a collector buys your painting but later sells it?” Without hesitation, I replied, “The art world needs speculators. What would emerging artists do without someone willing to take a chance? And what fun would collecting be without the gritty discovery of future treasures?”

Days later, I felt haunted by her question and wondered if she might be onto something. I’d always believed that our ideas remain eternally ours in spirit, and by sharing them we make the ultimate connection we crave as communicators. In short, my job is to let my paintings go. On top of this, collectors are vital participants in the life and stewardship of art and so should be free to make changes down the road if they feel like it. Focused on the ideas of acceptance and rejection, perhaps I’d missed other values.

sam-francis_untitled-1984

Untitled artwork, 1984
by Sam Francis

“I understand her query,” a dealer-friend weighed in. She mentioned this month’s Supreme Court decision on a California lawsuit about secondary market artist royalties. Chuck Close, the estate of Sam Francis and others have sued Sotheby’s, Christie’s and eBay for ignoring the California Resale Royalties Act of 1976, which requires auction houses to pay a five percent royalty to artists on works selling for more than $1,000, including to out-of-state buyers. Last year, an appeals court ruled that the Act is constitutional and must be upheld, with the exception of when sales are made outside of California. President of the Artists Rights Society, Theodore Feder, took it as a win: “The California court could have called the whole thing unconstitutional, but did not.”

In New York, Representative Jerrold Nadler, with the support of some other members of Congress, has championed a bill called the ART Act, which would provide a similar percentage and allow for worldwide royalties. It would also require the Copyright Office to watch its effects on the art market and eventually advance the law to cover dealers and galleries. Like the universally accepted buyer’s premium, an artist’s royalty could become an expected inclusion in the value of new love.

sam-francis_1994

Untitled artwork, 1994
acrylic on canvas by Sam Francis

Sincerely,

Sara

PS: [Resale royalties are] “a fundamental right enjoyed by artists around the world that we hope will finally be accorded to American artists.” (Eric George, of Browne George Ross LLP, California)

Esoterica: Perhaps my collector friend sought to simply better understand the nature of art relationships, loyalty and rejection. In art, as in love, changes of heart are sometimes part of the affair, while others mate for life. In business, Massachusetts Congressman and ART Act champion Edward Markey believes that “the creativity of America’s visual artists is a currency that should be properly valued. More than 70 other countries provide visual artists copyright protection for their intellectual property, and the ART Act brings the United States in line with the international community so American artists can receive reasonable royalties when their works are sold overseas.”

“My attitude has been that collectors stick their necks out by buying our work in the first place, and ought to enjoy the full benefit of their shrewdness.” (Robert Genn)


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21 Comments

  1. My Dad always said that you “Are not married to your art”. Let it go… He was right. Of course artists need to be respected as much as anyone else in society.. Fair is fair and I am sure speculators appreciate that. I appreciate them.

  2. Laws to support the value of artworks must always be upheld and improved.

    But re: artwork resale

    tsk tsk……….vanity vanity – all i s vanity to mind resale, when resale actually enhances the fame and value of the work.

    My pet peeve involves gifting of artworks.
    For example: If I sell a painting, the buyer may then donate and deduct full value of the art from the taxes – plus any prove-able appreciation, in most circumstances. NOT so for the artist: unless the maker of the art is enhanced fully in spirit by the donation, the artist loses, since he may not deduct even a pro-rated value of the work – only the materials used.

  3. susan canavarro on

    The older I get the more I realize that America, a civilized developed country, has not evolved along with the rest of the world. There are more places outside of the US where art and artists are more valued. There are more places that value a gun free society than here in the US. There are more places that value and respect and care for their senior citizens than we do. We think of ourselves as the best, the most advanced, the most sophisticated, the most honorable, the most democratic and egalitarian society, but lately I’ve realized we have a very long way to go before we can be anywhere near evolved as a country and as human beings. Sometimes it feels like the evolution of this country and humanity is going backwards, not forward.
    I do like the idea of artists receiving royalties when someone buys our work and then resells it. I have sold many which have been resold or donated, but I haven’t received a dime from any of that. Neither did my artist father. Even with my little book, the most I’ve received in royalties is less than $4.00 since it was published 2010. I’m sure that is due to my book not being a hot seller, but it is also due to the fact that sellers of used books don’t pay royalties, online book sellers may buy used books and resell them without paying a dime of Royalties.
    It seems the artist, the writer are the least important, altho they are at the top of the totem pole when it comes to the creation of their art.

    • Back in the 1970s I met a New York lawyer named Projansky who had rafted a law protecting the artist when works purchased are resold, and that sort of thing. But so far as I know such laws were never passed and we have to hope at least our works are being appreciated by those who bought them originally or later by others. We usually have no idea where they are after some decades passed. I sometimes look on internet to see what new things come up when I enter my name in a search, and I find paintings that had sold many years ago are or have been in regional auction houses with estimates sale prices usually much lower than they ought to be. That’s discouraging and I don’t like even seeing that. I’m better off working my best in my studio and not concerning myself with what happens in some cases with my sold paintings.

  4. I have a clause in my sales agreement about reselling my art:
    2. RETRANSFER: If Purchaser in any way whatsoever sells, gives, or trades the Work, if it is inherited from Purchaser, or if a third party pays compensation for its destruction, Purchaser (or the representative of his estate) must within thirty (30) days:
    1. Pay Artist fifteen (15) % of the “gross art profit,” if any, on the transfer; and
    2. Get the new owner to ratify this contract by signing a properly filled-out “Transfer Agreement and Record” (TAR); and
    3. Deliver the signed TAR to the Artist;
    4. “Gross art profit” for this contract means only: “Agreed value” on a TAR less the “agreed value” on the last prior TAR, or (if there hasn’t been a prior resale) less the agreed value in Paragraph I of this contract.
    5. e. “Agreed value” to be filled in on each TAR shall be the actual sale price if the Work is sold for money or the fair market value at the time, if transferred any other way.
    ___
    I supply along with a bill of sale a Certificate of Authenticity and a Care and Maintenance sheet.

    • Do you have any problem with other artists using this re-selling clause? I almost think a copy of it should be glued to the back of the canvas along with contact information.

    • Thanks for sharing this. In the absence of such an agreement, and the absence of resale royalties legislation, I wonder if current owners could be encouraged to allow an auctioneer to sell an artwork on the condition that the artist is paid a royalty? The condition could include a 3 way split, making it relatively painless, ie less of a deterrent for any one party. It seems to me there needs to be a cultural shift in this area and asking collectors to support artists in this additional way (being supportive is often the reason for the initial purchase) could take hold amongst at least some collectors.

    • This a very interesting concept. I am curious how your terms are viewed by the purchaser of your art. Does it make a difference in a potential sale? How do you make sure the original buyer and resale owner abides by the agreement? If it’s a gift, are you going to make the receiver “pay” for the gift? Or have the giver “pay” more because they thought well enough of your art to give to another the same joy and satisfaction that they were willing and happy to give it? And so on… I am making the assumption that where you live does not have laws to enforce this type of agreement. To me, this sounds like a lot of effort and time that could be better spent
      making art. It seems like you consider your art to be a money maker beyond its original sale. You do own the intellectual rights. Once the artwork is sold, why should you continue to profit from it? One hopes our art continues to rise in value. The usual way is to sell it to someone else. Or you are are so successful that when you’ve died and therefore can’t make art, then it’s value (if and when it sells) goes up.

      I think we artists can think of our work as so valuable and therefore worth being paid time and again beyond the original buyer.

    • Rain, the quality of your art and professionalism warrant your approach to sales and marketing of your work, however it appears that some here don’t understand that. It is becoming increasingly more difficult to raise the public’s respect for artists when they themselves don’t. I suggest that the sceptics check out your website as an example of how to elevate the standards of art.

  5. A theory or attitude held by California Supreme Court, that acts as a guiding principle for behavior, is falls, wrong and mislead. It doesn’t take into a consideration the whole act of creation and purpose of it. If you want to make money, play on Wall Street.

  6. Grant Crawford on

    I feel that my collectors are investors in not only my artwork, but also in my career. I hope they become very rich in every way. If the work has been appreciated on the walls of their homes…good. I hope their lives have been enriched by it as well. I view my job complete when I have found another soul who desires it so much that they would exchange their hard won dollars for it. When and if they must part company with it; my hope is that they will find that it has more than improved their pocketbooks. I need no other recommendation or recompense than to know my work is well received.

  7. Jamuna Snitkin on

    I feel we really want most deeply to share, not to sell. Selling is a big surprise and comes from a whole different place. If you stay true to your vision and keep at it,the value will awaken interest, perhaps and sales may follow to keep you going.
    Jamuna

  8. I’m still pining for the first painting I sold! Wish I had arranged for a “first refusal” agreement. (soft sigh)

  9. Sorry, I disagree with “royalties”. I own the intellectual property rights but the buyer owns the painting. As the owner of that painting, he or she is therefore entitled to sell it at any price he/she wishes. (To take it to the opposite extreme, if the buyer loses money on the resale, do we then have to refund the buyer 15% of the difference?) If the buyer makes a profit, that means I can sell my next paintings for more.

    For me, the issue isn’t about royalties; it’s about getting a fair price on the intial sale.

  10. I understand the point of artists wishing to receive royalties on works they previously sold, however, I know that people who’ve purchased my art in the past, then, unfortunately, passed away, had the artwork either gifted to family members or sold in estate sales. I certainly don’t feel the need to search for the current ‘home’ where my artwork resides. The original buyer enjoyed it enough to part with his hard-earned cash and I have let the piece ‘go’. I just have to wonder how many artists have the time to keep track of their previous sales? Sadly, I once saw a painting done by an art collegue for sale in an antique mart for less than the cost of the glass/frame. That artist died, and I wondered if his family would’ve wanted to know about it, or would rather not? What could they do, anyway? More frustrating to me are the ‘copiers’ whether they are in a foreign country or up the street, who basically steal the image I created and sell it for profit!

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