Get paid twice?

Dear Artist,

Every once in a while I hear from artists who would like a small commission every time their work comes up for resale. The French have been doing it for years. It’s known as droit de suite (literally “right of continuation”), and it looks as if British auction houses are about to adopt it as well. They’re talking about 3% on resales of 1000 euros or more. This they intend to kick back to the artist — if the artist is still kicking. Collectors, of course, don’t like the idea — mainly because they have the feeling that the artist would be nothing without them in the first place. Besides, bookkeeping would be difficult, under-the-table and quiet sales would flourish, and wisdom suggests that even more of artistic wealth will end up being distributed from New York where the kickback idea will certainly never take hold.

I’ve never liked the idea either — something my collector friends appreciate about my character. There is little room for sentimental ideas in a full-blown capitalist society. No architect has ever been re-recompensed when his building was resold. Who ever heard of a jeweler getting paid every time a ring went from finger to finger? Artists take their chances when they make things and often get excellent pay for the work they do. Collectors help make it happen, and they are the ones who ought to be rewarded when they decide to move things on.

One of the more exciting art happenings these days is the remarkable surge in regional and national art. Many countries are experiencing a solid and growing art market. Better quality work is turned over at reasonable prices, with reasonable expectation of further investment growth. Some of this has come about because of the serious questioning of the London –Paris –New York axis by the critics themselves. Apart from the feeling that the cutting edge is not so sharp any more, outbreaks of The Emperor’s New Clothes Syndrome seem to be abating. As discussed in Barry Gewen’s recent article in the New York Times, State of the Art, the brightest critics are now noting junk when they see it. According to Gewen, “Anything goes” isn’t going so well any more. It’s in this climate that the modest collector, who is buying with his heart and without benefit of ballyhoo, needs all the encouragement he can get. At the same time, we all want to see that the newest forms of contemporary art are collected and resold. Collectors should have the last word — and the last cent. I say, put the patrons on top.

Best regards,

Robert

PS: “Droit de suite assumes that most artworks are resold at higher prices. Most contemporary work is not resold at all–let alone resold for a profit. There’s barely a market for it. The artists whose works are resold are generally ‘hot’ or commercially successful and have already been able to negotiate better contracts with their dealers. They, too, have become rich in the art market’s run up.” (Alexandra Peers, The Wall Street Journal)

Esoterica: When any phenomenon falls too much in the hands of organized money-changers and vested interests come to the fore, a feeling of distaste and decline can set in. In a parallel example, the once-universal hobby of stamp collecting is currently in decline partly because of an emphasis on money and profit rather than on education and personal joy.

 

Royalty drives market away
by Paul Azzopardi, Malta

Droit de suite is being introduced here in Europe because big government here — like big government everywhere — seems to assume that something like this comes at zero extra cost, which it obviously does not. It will involve a lot of administration, it is another burden on the private sector, and will drive the market away.

 

Getting in on the money
by Robert Wolff, Kea’au, HI, USA
 

As in all other aspects of our capitalist society, it is the middle man (or woman) who makes the real money. Not the farmers, not the people who make the cars, not the designers, architects, and other doers — but the people who buy and sell and sell again. I for one am all for some kind of continuing interest in what one has created. And in our society that interest is money.

 

Put patrons on top?
by Laura Orchard, Santa Fe, NM, USA
 

It’s all well and good to keep the playing field of writers, artists and jewelers on the same footing, but why elevate the collector to the extent that you do? Who is to say that the monetary and reputational benefit I receive when a collector buys my work is any less than the personal benefit the collector receives having the opportunity to live with my work? Fine if that collector makes a profit when he sells my work, or is lauded by a museum when he donates it, but “put the patrons on top”? This self-deprecation doesn’t help any of us and only perpetuates the starving artist image — very unbecoming for a civilized culture. And how much of that “expectation of further investment growth” relies on the artist remaining disciplined, inspired, curious, inventive, and determined to continue creating in a world that puts the patrons on top?

 

Ongoing contracts for graphic design
by Sharon Clark, Alpharetta, GA, USA
 

This practice comes more from the graphic design and illustration business, where it is common to sell a design for a specific purpose and print run. The Graphic Design Guild has lobbied long and hard to enforce contracts and copyrights for designers. I believe this is fair and equal for this business, but I agree that it would be difficult (if not impossible) to enforce this with fine art. Most collectors are not in the business of buying a piece of artwork with the intention of reselling for profit. It does happen, but I don’t believe it is the norm. It is (as you stated) extremely difficult to police the design business and I am sure it would be even more difficult in the fine art arena, especially in the States.

 

 

Value in intellectual property
by Robert R. Newport, Los Angeles, CA, USA
 

Calling droit de suite a “kickback” connotes a certain bias against it to begin with. I.D. (intellectual property) is big these days. Copyrights have been extended by the congress to decades, and any musician who creates anything of popular interest can expect to profit (unless robbed by the music industry execs) for years, same for filmmakers. Why should artists not be treated similarly? The term “starving artist” has a certain quaint nostalgic ring to it, but living in that mode is not conducive to furthering the creative process. Perhaps we should start a discussion on whether or not the artist “owns” his image, whether or not he/she “owns” the canvas upon which it is hosted.

 

Contract diminishes spiritual nature
by Jim Pallas, Detroit, MI, USA
 

Back in the ’70s, I sold a few works under the Artist’s Reserved Rights Transfer and Sale Agreement, which kicked back a 6% of the resale price’s profit to me. Unfortunately I sold it to people who had no intention of ever reselling the works. (They fulfilled their intention, alas.) I found only a few potential buyers who balked at the deal. The reasons they gave are the ones you mention in your Twice Weekly Letter. But the best advice I got was from U.S. Senator Carl Levin and Barbara, his wife and a contract attorney. They explained that, to people like themselves, art is something removed from the banality of everyday life. Buying an artwork is a way they can participate in that special realm. The acquired artwork becomes a piece of their life that is not constrained by such considerations as reality, logic, or finance. Attaching a contract to an artwork ties it to the material world and diminishes its spiritual nature. They led me to realize, years later, that there is no real connection between art and money. In the west, art entered the commercial arena during the Renaissance. The creation of most art throughout human history was motivated by something other than money. Needless to say, I stopped using the contract.

 

Artists deserving of fair share
by Godfrey Blow, Perth Hills, Australia
 

I must say I was surprised and disappointed by your views expressed. Personally I think it’s only fair that artists get a small return from any resale of their artwork. I also think that whenever I sell a piece of work, it is still my work regardless of whether I actually own it. It’s my intellectual property. Three percent on resale is hardly unfair and this is inline with the European art scene. Collectors would be nothing without the artists. They could not exist without the artist, but we could survive without them. I have continued to paint for years without collectors. Usually I make very little from exhibitions I participate in. I prefer to maintain my integrity. If, however, a collector comes along and wishes to sell the work, then I think I deserve some small part of the money that is made.

Safeguards need to be put in place to ensure that artworks are not filtered to America for resale. How this could be done I don’t know but every effort should be made. If, as you say, many countries are experiencing a growing art market, then artists should have a fair share of any work sold. This bill will also encourage younger artists to keep going, knowing that sometime down the track they will receive a small part of later resales.

 

Craziness in music industry
by Jean Burman, Australia
 

I agree with you that artists have already been paid in the original sale of their work. If collectors wish to sell later for a profit, that’s the collector’s prerogative. Droit de suite reminds me of the nonsense going on in the music industry here in Australia. An organization has been set up specifically to police the sale and usage of music. Music is written and recorded by the artist, produced by the record company and then sold on CD through music stores. Those same stores who sell the CDs and promote the artists must then pay a royalty to this organization… allowing them to play the music in their store… to pass back to the artist. This also goes for any business, shop, restaurant, broadcast, event, or even website that wants to publicly play the music they have already purchased. All must pay a yearly license fee and then record their usage of the music (including how many times played, etc.) and send quarterly reports of this usage to the organization for distribution of royalties to the original artists (after they have skimmed off their fee of course!). I may be talking music here and not art… but it has crossed my mind that art could just as easily go the way of music into such craziness. What comes first… the chicken or the egg?

 

Are painters lesser persons?
by Richard F. Barber, Anshan, China
 

Why do you feel that it is wrong that an artist should share some of the profits of the sale of his or her artwork? Take for instance your local bank. They charge you for the privilege of holding your account plus they use your money to make further investments. They are quite happy to give you a small percentage back from their net profits because without your investment they couldn’t function. In the music industry, recording artists receive royalties from their music. Authors receive royalties from their books, so why not a painter or sculptor for his or her creative work? Are they a lesser person than a singer or a musician or an author? Is their work so insignificant that it has a lesser value? You mention the collector as if he is some kind of god. He or she is a collector for one of two reasons: his or her personal taste or what they see as an investment for their money – just like choosing a bank or buying shares on the stock market for financial gain. So if they have bought it for financial gain, then why not share a small part of that with the artist? As you yourself have said many times, artists spend a lot of time honing their skills and perfecting their art, also searching for a style that will make their work acceptable, which means lots of rejection and self-sacrifice, so when they finally achieve that, surely they should reap the rewards.

 

Copyright paintings
by Coulter Watt, Quakertown, PA, USA
 

Having shot films around the world for International NGOs, foundations and the like for years — the film business isn’t all glamour — Droit de suite has occurred to me. I’d do a great job for a client, perhaps too good a job and they’d use the footage over and over again year after year and I got bupkis (that’s Yiddish for goat droppings). It’s called Vulture Video or refried beans. A multitude of indignities and abuse happen in the art world, such as dealers selling a work at a discount without your permission and passing along 50% of the discount to me (expletive deleted) to name one. Unfortunately, while I like the idea of droit de suite, the administrative costs of making it a workable scheme don’t make economic sense. The only alternative is to copyright the painting and have a sales contract that states that the artist retains all copyrights. One can sell the painting, but retain all copyrights for prints, books, etc. I’ve worked that way for years. If a buyer raises objections, I tell them that if my prints of the painting are a success, the value of the original goes way up, so they’re winners, too.

 

Resale fees same as photocopy fees
by Carol Ljuden, Redwater, AB, Canada
 

The royalty system bears some thought. The recent “thefts” could be thought of in the same light as the reselling of the image/work itself. If we are not entitled to a portion of the resale fees of the original, why are we entitled to the resale fees of copies, digital or painted? If we feel we are entitled to the resale fees of photocopies or painted copies of our image, why would we not feel that we are entitled to a resale fee on the original work? How are these different?

 

California royalty law
by Edie Pfeifer, Hermosa Beach, CA, USA
 

The state of California has had this law on the books for many years. You are right, there is no way to enforce it, unless you really make it big time. Obviously there are those who feel that starving artists, who sold cheap early in their career just to get by, should be compensated if they later become well known. As a means of educating collectors, I include this notice with the receipt for any major sale.

 

 

California law also feeds Arts Council
by Mira M. White, Walnut Creek, CA, USA
 

California’s resale royalty law of a 5% return upon resale to the artist, provides also for the deceased artist. That amount, theoretically, goes to the California Arts Council. I just received a check from a resale, and it felt totally appropriate. This is one of the rare times I disagree with you.

(RG note) Thanks Mira. Also, this law is a convenient way to find out if one is still alive. For those who wish to know more about the California law they can go here.

 

Artist payment in Brazilian law
by Alfredo Rainho, Buzios, Brazil
 

Concerning the droit de suite, I would like to inform you that it is legal in Brazil according to the “Law of Rights of Authors” (Federal Law nr. 9,610/1998). Article 38 – (My translation follows)

“The author has the right, unrenounceable and untransferable, of receiving, at the less, five per cent on the increase of the price eventually realised in every reselling of the work of art or manuscript, under the condition that they were originals. If at the moment of the reselling, if the author does not receive the payment, the seller is considered as the depositary of the amount due, except in the case that the sale was realized by auction, then the auctioneer will be considered the depositary.”

 

Private 15% solution
by Linda Hankin, Welland, ON, Canada
 

As a dealer I have an arrangement like droit de suite at my two galleries. It is called “Transfer of sale agreement.” The purchaser signs that section of the Bill of Sale saying that he/she, upon selling the work and making a profit, will give the artist 15%. Just like giving a tip to anyone in the service industry or whatever. Currently it is based on trust. However, if the sale is not reported and a profit is made, the artist or their heirs will hear about it eventually through other sales at auction houses, etc.

 

What about the soul?
by Marie Martin, Huntington Beach, CA, USA
 

“It is essential that the painter should develop not only his eyes, but also his soul, so that it too may be capable of weighing colors in balance.” (Wassily Kandinsky)

Much of what you articulated in your letter concerns cultivating the soul, not just the next quick buck. Anticipating that I would feel as though I had “made it” while awaiting receipt of my first check, I was surprised to learn how much more important and validating it was to see that certain look in people’s eyes. The palpable joy displayed on people’s faces when they fall in love with one of my paintings is far more satisfying than money. Naturally, everyone paints for different reasons and everyone has their own monetary goals, but worrying about getting those few extra dollars, when a painting infrequently re-sells, seems to be a mindset capable of stomping the soul out of one’s creativity — if not his humanity.

 

Two way street for artists?
by Lauren Finn, Oxfore, MI, USA
 

A Patron is supporting you by buying your work… period… regardless of where you are in your career. If, down the road, they re-sell to someone else for more money… that just proves how clever they were to buy your work in the first place! I’d be doing a happy dance for them… (and for me) — not sticking my hand out asking for a cut. Now what happens if they sell it for a loss? Will they be coming back to the artist to get some of their investment back? Yikes!

 

Exaggerated art aura counterproductive
by Ernst Lurker, East Hampton, NY, USA
 

It needs to be pointed out that collectors are largely responsible for some serious aberrations and pervasions that are completely alien to art but have nevertheless infiltrated it in a detrimental fashion. They have created an overheated investment, speculation, and auction boom in the art market in which masters such as Rembrandt, Van Gogh and Picasso have fetched hundreds of millions of dollars. These activities bestow an exaggerated aura on art that is actually counterproductive. The fact that art is a form of creative self-expression and communication is being veiled and compromised. The art becomes less accessible and even alienated, which is definitely not in the interest of any communication. On top of this, art has become a commodity, an idol of prosperity and conspicuous consumption, a fetish and a status symbol. The cultists, speculators, and status seekers all meddle in art for the wrong reasons. Piero Manzoni was highly critical of these developments and parodied the cult by canning human excrement with the title “Artist’s Shit” in a signed and numbered edition of 100. Many get upset about statements of this nature, but he has a point and he needs to be understood.

(RG note) Thanks, Ernst. Wow! I really opened the can with this letter. So many wrote in with both sides of the question. Also, for those who are interested, Barry Gewen’s New York Times article is entitled State of the Art.

 

Sick and destitute artist
by Mary L. Moquin, Sandwich, MA, USA
 

Several years ago I attended a talk on this subject by the well known pop artist James Rosenquist. I guess I probably agreed with your sentiment prior to his presentation. In his case, paintings that he had originally sold for small change were being resold at auction for tens of thousands. In the meantime, he was destitute, sick, without insurance and unable to paint. It gave me another viewpoint.

 

 

 

A courtesy to our elders
by Peter Brown, Oakland, CA, USA
 

Perhaps droit de suite has value as healthcare insurance. In the USA, we don’t have any to speak of. I once knew an artist who went blind in the 1980s. Paintings he had made in the 1920s had become historical, rare and valuable. These had been sold originally for 25 dollars. Before he died they were going for 8 to 10 thousand dollars. He died a few years short of 100, and he could have used some money toward the end. Those paintings are now in the $25,000 range. It would seem to me to be just a courtesy — a small gift to our elders and the pioneers.

 

 

 

Regional art on the go
by Susan Canavarro, Florence, OR, USA
 

It is very exciting that regional and national art is experiencing a surge, but it is important to remember that the local and regional arts have always been there, recognized by critics or not. We regional artists have survived and persisted in making art against all odds of being commercially successful. Very few of us sell, yet we persist in making art. We are not dependent on the Clement Greenbergs of the high New York art world to make our art “seem” more significant. The very fact that we do it with little monetary and verbal reward is significant enough and critics should take note. Critics should offer their support, but they don’t. It is my experience that the high mucky-muck art critics of the New York, Europe, London, LA so-called axis have done nothing for the regional arts except denigrate them.

Tell them to come to Florence, Oregon to see the positive things we have done on our own to promote our regional arts. Tell them how we support each other by buying art locally, by showing up at exhibit receptions and lending our physical and moral support to the exhibiting artists. Tell them about the non-profit organizations, like the Florence Events Center, which promote the visual and performing arts. Take a look at our local regional art galleries and cooperatives like Frames of Florence & Gallery and Backstreet Gallery. Take a look at our art and artist websites, like FlorenceArtists.com and many others. No critic has helped us along the way. There have been no accolades from the national scene. The critics don’t even know we exist. Please don’t insult our efforts by telling us any success we may be having in regional arts is due to the world’s high-end art critics suddenly speaking up for the value of the regional art scene and questioning the high art of New York. Do not discount the valiant efforts of every individual artist who persists in making his or her own success story. Local and regional arts will always struggle precisely because we are ignored at the national and world levels. In fact we are often ignored at the local levels. We will survive no matter who does or does not write about us, no matter what public funds are never available to us, and no matter who is buying or not buying. We will make art.

Through thick and thin “trends” of the “cutting edge” scene, the value and quality of the local and regional arts has always been there. And their success is only due to the efforts of each and every individual artist and their local support system. Not accolades from big city critics.

 

Profits twice-removed
by Brett Busang, Washington, DC, USA
 

And removed so they should be. Your well-reasoned and wordly-wise “take” on second-generation sales should be the text for a collecting atmosphere that must necessarily thrive — at least partly — on faith as well as judgment. (Also: how on earth can even the most well-meaning among us ensure that old debts are paid by legal fiat? Legislating morality belongs in the same dustbin as the notion of an excellent barber giving himself a good haircut. Coulda, shoulda, nada.)

(RG note) Thanks Brett. And thanks to all who voiced an opinion. Some writers suggested that we have a vote on this one. I can tell you that about 60% (nearly a thousand writers) essentially agreed with my “take.” Another 35% didn’t, and we have included a higher percentage of the better-written rebuttals in this clickback. Another 5% didn’t really let us know where they stood and more or less just wanted to talk about it. We treasure them all.

 

 

 

Featured Artist Ken Danby, Guelph, ON, Canada

Bali mist oil painting by Ken Danby, Guelph, ON, Canada

 

You may be interested to know that artists from every state in the USA, every province in Canada, and at least 105 countries worldwide have visited these pages since January 1, 2006.

That includes Elsie Ring who wrote, “Artists need to be grateful for making an initial sale. We have enough greedy people in this world — let’s not add artists.”

And also Jerry Snyder of Reading, PA who wrote, “I think yer way off there. Things are tough enough.”

And also Marsha Hunter Smith of Houston, TX who wrote, “On the other hand, actors are also serious artists and they get residuals when their works are rerun. Musicians get a tiny amount whenever their work is broadcast.”

And also Shari Jones who wrote, “I can’t imagine worrying about tracking a painting for $30.00 on a $1000.00 resale. I am just thankful someone else shared my passion enough to purchase it. Let it go, go on and make something even more meaningful.”

And also Brian Jones of Cortaro, AZ who wrote, “Increase in value is a motivating factor for purchasing work. A “royalty” paid back to the artist may actually reduce the amount of artwork purchased by buyers who are also investing in an artist’s career.”

And also Sandy Brand who wrote, “I’m all for artists receiving a small commission every time their work comes up for resale. We usually get asked to do loads for nothing — and most of the time, if we can, we do.”

And also Todd Plough of NY who wrote, “The lack of additional commission will not make or break the artist — but trying to take it will make them look petty. Collectors believed in us, let them have their reward for faith.”

And also Marina Li of Oakland, CA who wrote, “Artists die humble and the world of capitalism wrings its hands then puts on the fat gold rings. In this sense, droit de suite is a reasonable insurance.”

And also Ortrud Tyler of Oak Island, PA who wrote, “The so called ‘free market/free enterprise’ is a tough place and neither free nor an even playing field. Never has been, never will be.”

And also Theresa Bayer of Austin TX who wrote, “Once I sell something, I don’t worry about it anymore. It has found a home, and I’m glad because all good art deserves a home. I, of course, retain the reproduction rights. I am still free to resell it as an illustration or as a reproduction.”

And also Dewey Zimmerman of Calgary, AB, Canada who wrote, “If one of my paintings resold for a higher price than it now makes, my current paintings are then worth that much more. Thus, I would be profiting from a resale. I would not even entertain the idea of harassing the seller for a percentage. I might even send the seller a thank-you card.”

And also Lesley Grindlay of Abbotsford, BC, Canada who wrote, “Every time something is sold, no matter how often, tax is added to it and the government gets a kickback. Where’s the justice in that? So why can the artist or architect not get the same?”