The increased oversight and regulation that expanded legislation around artwork sales would bring may not be attractive to all. “Fine art is the last bastion of an unregulated market,” said New York Supreme Court Justice Barbara Jaffe. “Don’t forget that when you have regulation you have the government coming in and examining it, and the IRS and such.” She countered, however, that while private contracts such as the Siegelaub-Projansky Agreement—used by Haacke,
, among others—place the onus on the artist to administrate and absorb the costs of litigation, a federal law would transfer this responsibility to the government. “Every contract can be gotten around; that’s what lawyers do,” she said. “What’s good about this is it makes it a matter of law.”
The kinks and quirks of our current art market legislation are manifold. As Haacke noted, when a collector donates to a museum, they get a tax deduction. When artists donate, they don’t. (Warhol and
found a loophole by donating each other’s work to museums.) Even if the ART act were to make it through congress, several nebulous areas would remain. In a hearing about the bill last year, Nadler described the artworks covered as including “painting, drawings, prints, sculpture, and photographs in the original embodiment or in a limited edition.” Digital, performance, and conceptual artists are conspicuously absent from this list. Digital artist
has drafted a contract
specific to the resale of this form of art, but artists of his ilk would not benefit from the federal law.
At stake in the battle to reshape the structural imbalances of the art market are larger questions of ownership, cultural value, and moral rights—and the issue of whether artworks should be approached in the eyes of the law as assets in a free market economy. Expressing concern with the quick ascension of the art market, Graham later commented that art dealers had a significant hand in escalating hammer prices, citing Charles Saatchi as emblematic of a new class of collector-dealers. “The problem is the dealers. A lot of dealers are selling works in auction, even in the primary market.” He noted the tendency of the value of an artist’s work to increase at a much steeper rate after inclusion in their first auction, the implication being that mere presence in an auction signals an artist’s growing worth, despite circumstances leading to the auction of an artist’s work being at times quite random. “Auctions and the nature of auctions determine how much work is worth. This affects how artists work.”
The emotional response to the footage of Rauschenberg and Scull was clear, but the legalese is far more complex. Nadler’s bill faces continued opposition, but the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) is set to discuss the issue in December 2015. Whatever the outcome, changes will likely be slow in the making, and as Justice Jaffe reminded the audience, “this is an incremental process.”