What’s At Stake in the Artist’s Resale Right Debate?
Congressman Jerrold Nadler Speaking at the Center for American Progress. Photo by Ralph Alswang.
During the Scull auction of 1973, in which the collector Robert C. Scull sold some 50 iconic works of Pop and minimalist art for $2.2 million,
The Scull auction footage was played to a packed house at TriBeCa’s Artists Space on Wednesday, July 22, on the occasion of a panel of arts professionals gathered to discuss a topic that has generated heated discussion across the art world over the past four decades. The cohort included contemporary painter
During his presentation, Dr. Theodore Feder of the Artist’s Rights Society pointed out that the European Union has set a precedent. It mandated artist’s resale royalties in 2001 and over 70 other nations have similar legislation, yet in the absence of a comparable law in the United States, American artists are unable to collect on sales overseas. There have been numerous attempts to establish artist’s resale legislation at a federal level in the United States over the years. (At state level, the California Resale Royalty Act is inscribed into that state’s law but is reportedly rarely invoked.) The first version of Nadler’s current effort came in the form of The Equity for Visual Artists Act of 2011, which included a stipulation that a small percentage of a sale would also be dispersed to the wider community of artists and to support nonprofit art spaces. Those provisions—seemingly arduous to define and implement—have been struck from its most recent iteration. Yet, as Quaytman expressed during the discussion that followed, the dizzying benchmarks set in auction sales in recent years must be absorbed by museums and nonprofits in the form of insurance fees, if not the cost of actual works, risking “the betterment of museums and the public.”
The provision to levy a small tax on secondary sales for the artist ecosystem at large was in part intended to assuage one of the main arguments against resale legislation—that it would benefit only a small proportion of already-wealthy artists whose works sell for high enough prices to procure a decent sum from a 5% cut, a “misconception” from Feder’s point of view. Several speakers raised the question of incentive, building on a report on artist’s resale legislation issued by the Copyright Office in December 2013, an excerpt of which reads:
[T]he Copyright Office agrees that the current U.S. copyright system leaves many visual artists at a practical disadvantage in relation to other kinds of authors. … Because most artworks are not produced in copies, the visual artist receives a financial interest in only one work—or at best a few copies of that work. Other creators face no comparable limitation, as their works are sold in perfect copies, and the copyright law generally enables them to be paid a share of every copy. To alleviate the effects of this financial disparity, the Office believes that Congress should consider ways to rectify the problem and to further incentivize and support the development and creation of visual art.
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,
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 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.”
Tess Thackara is Artsy’s Writer-at-Large.
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