Getting paid again

I live in Australia where indigenous art is all the rage, and, the Aboriginal artists are primarily people in outback back waters, who’s lives are marginalised and who have no street savvy. Their work can resell for impressive and considerable amounts of money, including all over the world, while their unenviable existances don’t change. I WELCOME a government body or ANY body that regulates copyright and resale for the people who do the work that makes this whole nonsense industry possible, and, we, here in Australia are only just starting to see some justice for these indigenous people. For others who just paint for prestige or name or whatever superficial no-need, definitely it is a whole different ball game.

In Oz we have recently adopted “droit de suite” or ARR legislation and are currently ironing out the many difficulties including accountability and royalty distribution. However I must say there is a glaring benefit that you haven’t canvassed in your letter. I know quite a few elderley artists who are either totally unable to paint or have their production severely curtailled because of age, sickness etc. Many have spent most or all of their past incomes and are living on meagre pensions while every year the secondary market resells their work for totals of millions. Unlike the average office or public service job there is no superannuation for artists and if you can’t produce till you die you and your family will suffer. ARR fixes that injustice.

I’m speaking from a position of self-interest but it seems appalling that there aren’t royalties for visual artists. Some countries have them but not North America. Musicians get royalties. Writers get royalties. Films get royalties. Actors get residuals. Visual artists? Nope. And the initial point of sale is often subject to 50% commission by the selling agent/dealer/gallery. It seems unfair. A 50% commission implies that the selling agent does half the work. Meanwhile, literary agents take a comparatively smaller percentage (10-20%) as do talent agents who deal with actors and musicians and models and athletes. Those actors, musicians, and models then get royalties of some sort on their portrayals and music and images. What do visual artists get? Some insouciant freedom to do what we want, when we want? Hm.

This is an interesting issue you have brought up and all its legal implications. Here in the USA the general public rarely hears anything about living visual artists unless they are a painting elephant or someone’s chicken. We know all the intimate details of every obscure rock star’s life, however. This is the difference between us and the music and video industry. To get a law enacted that provides royalties for visual artists, that I believe is only fair, requires a lot of people have to know and care about living visual artists and their art. Unless you live near a large city with a good art museum, people do not have exposure to good art, won’t know anything about art and won’t care. I don’t know if I have this opinion because I live in a college town that is obsessed with football or if my observation is true throughout the country. Have we visual artists done a poor job of advertising ourselves and left it up to other people? Have we assumed our art will do the speaking for us and we won’t have to do the hard work of getting ourselves in print or interviewed?

When I sell a piece I have always felt that the sale was final. It now belongs to the buyer. What the buyer does with that piece is no longer a concern of mine. If my work attains some lofty status while I am still alive and buyers pay large sums for future work that would be great. That senario in the art world rarely happens. Keeping track of thousands of paintings is difficult to imagine.

Laura, you made many good points !! Also, our copyright laws in the U.S. state that we artists still own our image/painting, unless we specifically sign over copyright. So shouldn’t we be getting royalties off that remaining ownership ?

Well, when I sell my car, does that mean I have to give a portion of the proceeds to GM, Ford, Kia, or who ever?

Visual Artists are the only artists that do not receive royalties for the resale of the work they have created. Music CD’s, movie CD, reruns on TV, song writers, these are just a few examples of the music and movie industry making money on the resale of their art. I am surprised that so many Artists think that it’s OK for them to sell their creations for less money than the reseller gets. Sure they may take a risk on an artist but so do recording companies, and movie producers. We even have very little to protect us from our images being reproduced and used without our permission. I am tired of the galleries and auction houses using the Visual Artist in the same way third world countries use their labour force.

With all the greed and underhanded dealings on Wall Street, with gallery owners, dealers and representatives an artist will rarely get paid the true value of his/her work. Not in their lifetime anyway. This is why I keep saying “don’t do this for the money”. Art is worth what someone is willing to pay for it. What is sad is actors and musicians get royalties, why not artists? I disagree with you about collectors sticking their necks out. Historically they buy cheap and re-sell high and who pays – the artists. I read once that Monet saw a work of his sell for millions. When asked how he felt about the high sale price, his response – he felt “…like the race horse that won the Kentucky Derby and all he gets is a bag of oats.” There is little justice in the world.

I hate to bring the spirits down, but I feel that we would get most profit if we could collect fees from art sent to dumpsters, basements, attics…

Dear Robert, For nine years, I lived in a building that housed 75 artists. After nine years of listening to artists complain about the lack of funs, the cut backs with arts fundings and the lack of support and finally the just waiting and doing nothing artists. I had to wonder “were they just making bad art?” Buyers are a shrewd bunch these days, it requires some finesse to sell art. Being an artist does not men we just create. We need to get out there, make a name for ourselves, market and promote and sell our works. I read the other day about the comedian Dana Carvy, he said “you have a nack and then it is 10,000 hours”. Being an artist requires a nack and being a successful artist takes another 10,000 hours. I have heard of Carfac and how important it is to support them. Now, I just had a good look at the BC chapter of Carfac. There are a few people who make up the board, they have a nice mission statement and a picture of the president meeting with the Surrey MP to discuss the artists resale right. There was one feature artist and the one member they had was Gathie Falk. They had a cheesy video showing how artists survive in the wild. Oh, and a Paypal button where you could send in money. Im an artist and I couldn’t figure out what they were doing.

This one line sticks: “Five percent seems very little to ask when you consider that the artist, through his or her efforts over many years, is largely responsible for the increased value of their work.” (Joe Fafard, Canadian sculptor) The big truth – all the promoters on earth won’t make a top sale of inferior art. Therefore, if the art has evolved and grown in value, that usually means that the artist has earned and deserves some of all profits from resales, always.

Yeah we tried it in New Zealand. It’s flawed as a philosophy, all creators, builders, architects et al could claim ongoing rights but the original purchaser is the owner of the risk and any ongoing benefits. Artists need to grow up.

This whole money business is a real problem. I think the difference between me and many of your other readers out there is that I worked pretty much my whole professional life as an art director, designer, illustrator, and portraitist. I was always having to fulfill others’ expectations and requirements. Often this challenge pushed me to innovative and rewarding solutions, but sometimes I felt reigned in by required and ultimately detrimental changes. I now choose to live modestly so I can be more selective about my work and have plenty of pure creative time. I have a gallery below my studio but as I live in a small rural village, get few visitors and have even fewer sales. This doesn’t bother me at the moment. Perhaps in the hazy future I will load up my car and approach a gallery in Toulouse, Paris or New York, but for the moment, I am content to remain in the slow lane.

I was ambivalent on the issue at one point. However, several years ago I went to a talk by James Rosenquist, the well known American Pop artist. He was pushing for similar legislature here in the US. His case was pretty moving. At one point he had run into a spell of bad health, was destitute, uninsured, unable to paint, virtually homeless etc. at the same time his work was selling at auction for 100’s of thousands of dollars that he had originally sold for a song. There was definitely something that just seemed wrong in this scenario.

I haven’t had enough time to think about it, but how is it any different than musicians getting paid each time their music hits the airwaves, or authors getting a bit when a library uses their books? Just curious…artist all!

CARCC (the Canadian Artists Copyright Collective) seems to work well – it requires a bit of online input to record publications where images of your paintings have appeared, but it is nice to get a yearly cheque in the mail. To my surprise, when I attended the CARFAC meeting that was held in Halifax this last summer I found out that it is run by one lady! If ARR can be equally efficiently run it might also be a good idea, although I expressed the opinion at the meeting that I don’t know how small struggling gallery owners can keep up with the paperwork.

I loved your comment about the government being the last organisation to do the job for ARR and I am not sure CARFAC would take on the policing that I suspect would be needed. I go into overwhelm when I think about how to keep track of who is who and which painting is on the auction block but then in the music industry it is really necessary and they manage, perhaps not perfectly. At the moment I am really not concerned as I am not a member of your league. Would like to be. I think I have to sell them in the first place, yes?

It is a season of thankfulness and I want to express how grateful I am to receive your twice-weekly highly intelligent letters. I cannot remember ever disagreeing with you and often feel enlightened by your insight and a touch of humor. I have been studying art and doing art all my life and recognize how blessed I have been creatively if not financially. Please keep up the wonderful contact you have with all of us and here’s wishing you a Blessed Christmas and Successful New Year!

Lucky are those that might get a commission on a resale! What if the art work sells at less than the purchase price? Does the artist kick in a percentage of the loss?

I am a pastelist and you touch on so many issues that I have experienced or thought about. Regarding getting paid: Many creative people get residuals from their creative work. It is not unusual and quite accepted. Visual or other creative works can be used in all sorts of ways after they leave our hands. I don’t find it unreasonable that artists share financially when an image that they created is used for the financial gain of others. I think we would probably already have this opportunity if we had been in a union such as SAG or AFTRA. But we are scattered and not organized for the most part.

What kind of money are we talking about in Canada and how widespread is this issue? It would be interesting to estimate what percentage of your Canadian readers have significant sales, how much of that are secondary sales, and how much is 5% of that? Would introducing a whole new government service to enforce this be feasible? Are there other things that the government could do to improve conditions or artists that would have wider impact?

I believe …tho it sounds tempting…this would be a nightmare to enforce…and incredibly expensive to run. I suspect it’s been the bailiwick of those whose work now sells for monster prices to pursue this. We also run the risk of scaring folks who might like to buy original art away from even considering it…if we stack fees and make it even more prohibitive to obtain? Think it’s time we all accepted that we will likely never get rich being painters…and that we, perhaps, need pursue our joy in other ways?

I don’t understand the justification for this. Don’t the artists set their own pricing to begin with? If they enjoy a good sales volume, don’t they traditionally raise their prices something like 10% per year on new and unsold work? Isn’t the buyer entitled to appreciation if the artist is successful? If the buyer becomes a collector, won’t he and she be paying more for additional work, and won’t that support the fact they made a good investment and backed a good horse? If I am misunderstanding the business with any of my questions, I need to hear it. I agree with your attitude, and like you even more for having it.

It may be that visual artists are only seeing (pun intended) what the auditory artists have been enjoying for years. As you indicated in the afterthought, royalties are paid when music is played, books are sold by the copy whether in print or electronic, actors (my wife among them) are paid residuals when the movies or sitcoms are played even after they are paid for their roles. Yes there are ways around the fees by internet downloads and the like but there is a system in place to provide support to those with the original idea. Visual artists have been on the short stick for many years. Commissions on resales is one way of doing. Like internet downloads some will try to get around it but for the most part a fee will just be built into the price as a real estate agents fee gets built in or GST is built in. It will become understood and expected. Actually, the second and subsequent buyers should feel that they are like the patrons of old supporting the people who produce the material and ensuring their ongoing productivity.

I’m not sure how I feel about this, but I am sure that using ASCAP and BMI as a model would not work in the artist’s best interest. Many musicians receive none of the fees collected by these groups. A better model would be to look at how screen actors receive residuals. The main difference, I think, is that the Screen Actors Guild makes sure that everyone who had a contract for a movie gets a share of whatever residuals are paid out. ASCAP and BMI are not unions and while they have a strangle hold on collecting fees when songs are played in a public venue, they don’t pay a pro rata to who ever’s songs are being played. Just talk to some musicians who have songs listed with ASCAP or BMI and you will get a better idea of what this is all about. Given that the likely difference between musicians and actors is the presence of a strong and active union that puts another spin on how this would work for artists. Union anyone?

I read with interest your comments on the Artist’s Resale Right. I would like to correct you on several points. First of all, I know very few artists on, as you say, the gravy train. Over half of Canadian artists earn less that $8000. per year from their art. Many artists in their senior years are struggling to maintain a decent living. Recent research has shown their average earnings to average $5000, the lowest of any artistic discipline. Many Inuit artists have sold their work for low prices, then see their work sold on line or in a gallery for four to five times the amount they were paid. These artists would welcome the benefit of the ARR. And how much ‘gravy’ would the ARR provide? At the proposed rate of 5%, this is a small amount compared to the fees/commissions levied by auction houses and galleries, which range from 15-20% to buyers. The ARR would not be run by the Government. There are existing collectives experienced and prepared to manage collection of the Artist Resale Right. The Artist’s Resale Right is established in markets around the world, and is reciprocal for artists from countries where it exists. This is not a new idea, having first been introduced by France in 1920, and there are successful management models easily available. It is time that artists be respected and rewarded for their hard work and dedication, which in turn increases the value of their art. Collectors, galleries and auction houses benefit, why not the artist?

An artist retains the reproduction rights. You know – coffee table books, posters, cards — sigh– giclee’s etc. This has been the traditional method for artists to get paid again.

Maybe some artists are poor because their work is poor.

One of the main ideas behind ARR is that Aboriginals and First Nations peoples who are often off the beaten track and in some cases have been exploited would receive benefits from the ongoing profiteering of their work. It would be good to at least consider this possibility. On the other hand, we artists live in the “real world” where dealers and collectors get what they can at whatever prices they can and resell at what they think the market will bear. Giving special treatment to First Nations people, while it may protect them in the short run, may also further the dependence they have on bureaucracy and government largess that delays their entry and participation in the main stream. Many First nations people are aware of this danger, while others are simply savvy and know how to drive a hard deal.

ARR already exists in California. It is called the California Resale Royalty Act. It kicks in if the resale price is over $1,000.

California Resale Royalty Act ——————————————————————————- The California Resale Royalty Act (Civil Code section 986) entitles artists to a royalty payment upon the resale of their works of art under certain circumstances. This California law is unique in the United States, although it is a well-established legal right in some other countries of the world. The right of artists to share in the appreciated value of their works when resold is important both in principle and in dollars. However, in part because many artists are unaware of their rights and in part because some artists are reluctant to assert their rights, money due to artists has gone uncollected.

As with all well meaning legislation the downside usually doesn’t surface until much later. Some points this discussion has missed: First, if I sell a painting I have established a price *I* think is reasonable compensation for it at the time, even if a gallery doubles the selling price. I was willing to part with it for a specific fee. If I didn’t think it was worth that I wouldn’t have sold it – it’s gone on its merry life and I’ll never see it again. Two, good luck with enforcing this one. How many times a work of art changes hands would be almost impossible to track. Three, yes, musicians get royalties every time their work plays on a radio station because of industry contracts …. but they get nothing from the hundreds of thousands of times people download their music online. Four, every time we rent a movie from Netflex the lovely little copyright warning pops up, yet many have libraries of movies technical breakthroughs allow unlicensed reproduction. They get nothing. My point is, the arts are not equitable and I’m not sure legislation is the answer, nor is it enforcable. There are untold artists in every medium from furniture to textiles and everything in between, from the primitive to the most sophisticated, who will never see their art rise to collector status. So? This is a prime example of good legislation gone bad: in Louisiana they decided they needed to stop the proliferation of drug dealer fueled sales of firearms. The state passed a law NO SECOND HAND ITEM can be sold for cash, period. It must be tracked by check or credit card. The goal was to stop dealers from buying guns on the street and general theft, such as stealing your computer, tools, etc., and reselling them. Instead they have effectively killed everything from antiques, used cars, photography equipment, crafts, to garage sales. The law is being challenged in court but in the meantime it’s crazy. As to not being productive in my old age, tell me who is, whether you’re a realtor, a business owner, a construction worker, or an artist? That’s life.

I am mindful of Van Gogh and Mozart both dying paupers while leaving behind works that would bring millions to the pockets of multiple galleries, collectors, performers, producers and others. Maybe it’s unfair, but there’s another side: works of art that continue to be desired beyond their original creators and benefactors speaks to the life that is taken on by the individual work itself. My stance is that once a work is finished, it is on its own. Those of us who create the work need to let go just like parents must let go of their children. I think we run the risk of poisoning our intentions if we crave financial profit to the point of tracking every piece we sell. That energy, I think, is better spent making new paintings. Clarkesville, GA

We’re forgetting something here – it is the artists’ hard work, belief in self as an artist, and consistency that adds value to the purchased artwork. It’s the difference between throwing out a value-less artwork because the artist has not done anything to increase their value (ie hobby painter etc); and hanging onto a Jane Smith artwork for value because Jane Smith has repeatedly demonstrated consistency and continuation of their work that makes their pieces valuable. If you sold only a few paintings, and gave up painting because you need to feed and house your family, auction houses aren’t going to be interested in your paintings because you haven’t done anything to prove your value. But if you continue developing a series of bodies of work, and consistently marketed yourself by ways of gallery exhibitions, etc, there’s a good chance your artwork increases in value each year. You do not need to be a Hirst or Koons. The painting you sell for $500 could be resold for $20,000, and all because of your hard-earned efforts. The buyer’s instincts and acumen on taking a chance on you is only but a small yet gratifying part. If you’re artmaking just for the fun of it, then so be it, but professional artists should take themselves seriously and consider their future value as well as current value.

If you ask the governments to protect you from your poor financial planning, you will be drowned in bureaucracy. The more you are “protected”, the harder you get hit once the protection falls apart. Just look at what’s going on in Europe right now. Non-profits are the same thing – supported by the governments and they generate bureaucracy – you know all those loops one has to jump through just to be told you don’t measure up for some bizarre reason. We are blessed that we can save our treasure without the bank fees and retirement funds. Save your own paintings for your old age. If you get so famous that you would benefit from the ARR, then you would benefit much more if you just keep a few of your paintings to sell in those last unproductive years. If your paintings have no value, ARR money won’t help you either. Music and movies get played many, many times so royalties can amount to something – how many times might a painting get resold over your life time – twice? As for the aboriginal artists problem – please focus on how to solve that exact problem. If you want to protect aboriginal artists, then do so, why talk about inflicting ARR to the whole art market? Can other people see how crazy that explanation sounds?

Just a few questions that came to mind as I read Robert’s letter and the above replies: Who or what will decide which type of art would qualify to benefit from an ARR? Paintings and sculptures only? What about lovingly-made quilts? Is the line drawn with fine arts or are other artisans and craftspeople allowed to the party too? Will folks like architects and carpenters begin to expect a percentage with every real estate sale? Will an artist who receives a 5% cut from every future sale be charged the difference if a piece sells for less its original value? If not, is it fair to protect the artist and not the speculators?

A thought about those here who have likened selling a painting to musicians who receive royalties on album sales and radio play: They are licensing copies, not original art. Visual artists are also welcome to license their works in a similar manner — they can take the form of numbered prints, giclees, postcards, t-shirts, stock art or several other possible avenues of revenue. Think Keith Haring slapping his work on all manner of bauble with his Pop Shop. To sell a single original item makes the purchaser its new owner, freeing them to do with it whatever they see fit. End of story.

Early clients of mine may have felt they were doing me a favor by buying my work, inexpensive though it was at that time. Maybe they were, as my work was not as good then. I live in California where there is such a program in effect and I am registered with it. It sounds like a good idea, and I wanted to encourage them, but I have had nothing from it yet. Now that my prices are much higher and I am more known nationally, I have heard of some reselling in Arizona. Has anyone else had this experience? Incidentally, this is a fantastic and valuable forum.

@Bill Horne: Perhaps I should clarify a little. I’d meant that a buyer is able to do (nearly) whatever they see fit with the ‘physical piece’ they’d purchased. In other words, they’re free to hang it upside down, use it as a doormat, tear it to shreds, or just enjoy it on a wall for decades. It’s their investment and they can do with it as they please. Although not a Canadian, I do realize that reproduction rights are not part of that freedom. In trying to make the distinction between buying a painting, and licensing its intellectual property, I realize my message wasn’t perfectly clear.

Thanks for clarifying, Rudolph; I had wondered if that’s what you meant. However, under the Moral Rights provisions of Canadian © law, I *could* take legal action if a buyer was to hang up a piece of my art in public and place it beside, say, a photograph of the Prime Minister, or a promotion for a tobacco company, etc. Google the famous Michael Snow – Eatons case for an interesting e.g. of this.

Art is a commodity that is traded like stamps, coins, cars, antique furniture. Once it is in the market it should be the property of the current owner until disposed of, for better or for worse. Far more stuff actually goes down in value, rather than up. We tend to hear about the stuff that goes up.

Another thing to remember — before you deliver your sold painting to the buyer, make sure you have excellent quality film or digital reproductions of the image for your archives. Then, down the road, when you have lost track of the owner and the painting, you or your heirs will still be able to sell the image to a magazine, calendar, or whatever. Especially if it becomes a ‘famous’ painting, or you become a more ‘famous’ artist. You have the reproduction rights to your image, but if you don’t have access to the original for some reason, and you don’t have a good-quality reproduction in your archives, you could be missing out on income from the sale of reproductions of your work.

I hate to say it, but visual art is not only too ubiquitous (everyone can take an image instantaneously with their cell phone), but it is not the top banana when you compare it to any other artform. The movie industry is king. And when you get into any comparisons of visual arts & royalties with the film, music or book industries, you must encompass licensing, reproductions, giclees, commercial art, digital images, etc. Painting is more comparable as an artform to the ballet, opera, & live theatre… non of which are doing as well as film, music, or fiction writing.

“If such a thing were to happen, government is the last outfit you’d want to run it.” Please don’t assume I agree with you. When you privatize you have a middle man to go thru and they all need to take their share, even non profits get political with high paying executives wanting their cut and who gets hired to run the organization is also political, but removed from our power to vote them out of office. Since the government is in charge of the Copyright Act they should also handle the ARR. As far as payment to the artist; it seems like so little to ask and an artist who thrives makes for work that has a better chance of increasing in value.

Dear Bill Horne, Well, thats kind of rude to chastise me like that on here. I do in fact know who you are. So, don’t talk to me like I am ignorant, because I am not. Actually, if you knew anything, you would know that I have actually attended seminars where representatives from Carfac presented who you were and how you do what it is you are trying to do. I understand that you hope to help artists, especially emerging ones with they’re marketing and promotion. Assist in grants available and how to write a proposal. You want to help artists establish themselves and work with them to show how to arrive their pricing. I know that you want to also further help to establish a liaison with law changing organizations that will further benefit the artistic community. So I have a pretty good idea of what you are trying to do. Funny though, as a relatively established artist here in Vancouver for over 25 years, one who represents himself, market and promotes his own career, operated his own gallery, teaches courses on marketing and promotion for your young artists and pretty much handles every aspect of his own career, you don’t seem to have a clue who I am. But call me anytime, I’d love to help you out. John Ferrie john@johnferrie.com

Dear John, I did not mean to be rude or to chastise you. I was responding to your comment: “I have heard of Carfac and how important it is to support them. Now, I just had a good look at the BC chapter of Carfac. There are a few people who make up the board, they have a nice mission statement and a picture of the president meeting with the Surrey MP to discuss the artists resale right. There was one feature artist and the one member they had was Gathie Falk. They had a cheesy video showing how artists survive in the wild. Oh, and a Paypal button where you could send in money. Im an artist and I couldn’t figure out what they were doing.” I had the impression from this that you didn’t have a picture of what CARFAC endeavours to do, but perhaps you were referring to the video, and I misinterpreted your remarks. I wasn’t trying to malign who you are or what you do, nor suggest that you are ignorant. At any rate, I’m glad to know that you are familiar with our mandate and I definitely appreciate the support you provide to young artists (though I don’t think of them as mine ;-) Sorry I haven’t had the opportunity to meet you before – I live 10 hours north of Vancouver. Thanks very much for your offer of assistance; I will contact you in the new year to follow up. best wishes, Bill Horne Wells, BC

Interesting post about the ARR. I understand the urge for artists to share in the growing fruits of their labor, i.e. benefitting from an increase in the value of the sale of their artwork. I’d say that was perfectly fair so long as artists also paid a fee to collectors if their earlier sale prices proved inflated. I feel like a curmudgeon saying that, but it seems that if artists want to be rewarded for the increased value of their work that comes from honing their craft, those who let their craftwork slip should also be willing to pay the price. I realize that is an impractical idea, but then again so is the ARR, which just goes to show that there is no reasonable way to put a monetary value on art. Art and money really don’t mix well.

Talk about a cheesy, winey video–that on the CARFAC site. Poor, poor artists, endangered species, my, my.

Perhaps the primary market artists like myself will benefit from this because our works will be a more attractive product for the dealers.

Having read most of the comments I can’t understand why some are against the ARR. Any amount albeit it be only 5% would help the artist to continue to work to create art. Why are some people anti visual artists ?