1. When the artist no longer starves:
The artist resale right in the United Kingdom and
The United States of America
Michael G. Nabors
Comparative Law Seminar
FALL 2014 / Professor Boris Mamlyuk
University of Memphis
Cecil c. Humphreys school of law
2. TABLE OF CONTENTS
I. INTRODUCTION
A. Method 2
B. Summary 3
C. Author Bias 4
II. A BRIEF OVERVIEW OF COPYRIGHT LAW
A. Historical Underpinnings 6
B. The Differing Approaches to Copyright Law in
Europe and the United States 9
C. Origins of the droit de suite 10
III. THE ARTIST RESALE RIGHT IN THE UNITED KINGDOM
A. The Resale Right Directive of the European Union 12
B. Fears and Criticism of the droit de suite Prior to Implementation 13
C. The Law As It Stands Today in the United Kingdom 15
D. Empirical Analysis of Its Effect on the Art Market in London 16
IV. THE ARTIST RESALE RIGHT IN THE UNITED STATES
A. The California Resale Royalty Act of 1976 19
B. The Berne Convention 21
C. Recent Attempts to Bring the Artist Resale Right
to the United States 23
V. CONCLUSION 27
3. WHEN THE ARTIST NO LONGER STARVES:
THE ARTIST RESALE RIGHT IN THE UNITED KINGDOM AND THE UNITED STATES OF AMERICA
I. INTRODUCTION
It is not likely than any person in our consumer culture has not, in one form or another,
indirectly paid an artist for the privilege of experiencing the artist’s work. When one purchases a
book, part of the price paid is a royalty paid to the author. When a consumer goes into his local
record store and buys the latest pop phenomenon’s newest album, again, part of the price paid is
a royalty to the recording artist. Likewise, with the (legitimate) digital downloading of recorded
music and so-called e-books, a royalty fee is assessed and paid. When one’s attention is brought
to bear on the world of fine art reproduction, the transaction will also likely include a fee built
into to the price to cover licensing fees that go to the legitimate owner in the rights of
reproduction of that work. With artists that are no longer living, that fee goes to their respective
heirs and estates and/or to the institutions (i.e. museums, galleries, et al.) that possess the work
and subsequent rights therein. The same holds true for contemporary artists, with fees being paid
directly to them via relationship(s) with various licensing entities.
There is, however, a distinct form of royalty payment that is unique to the fine art sector,
the droit de suite—more commonly known as the artist resale right. Defined as the right of a
work’s creator to benefit from the appreciation in the value of the work by receiving a portion of
the profit from its later resale1
, it is a legal regime implemented throughout the European Union,
with no federal implementation in the United States. The artist resale right was, for a time,
codified into the laws of the state of California, with limited reach. Simply put, as it stands
currently in the United States, an artist only receives compensation from the first sale of his/her
1
BLACK’S LAW DICTIONARY 570 (9th ed. 2009). To avoid repetitive terminology and overuse of acronyms, the
terms “droit de suite” and “artist resale right” are used interchangeably throughout the text of this paper.
4. 2
work, usually from a gallery or an arms-length transaction between the artist and patron. If the
artist is talented enough and lucky enough to ascend into the rarefied air of the fine art world,
any subsequent sales of his/her prior work—via galleries, auction houses, or private sales—do
not provide any provision for the artist. All profits are taken by third parties. This disparity leads
to a desire for a partially moral, partially economic right whereby the artist who created the work
and is largely responsible for the later profit should receive some portion of that profit.
A. Method
This paper utilizes a functionalist comparative analysis with an examination of
applicability issues in advocating for the United States adopting the artist resale right into
national law, akin to the model provided by the European Union as enforced by the United
Kingdom. It will argue for an implementation based upon the same rationales used for its
promulgation within the European Union—the moral rights of the creator. As this has not been
the traditional basis for copyright protections in the United States2
, an explanation of its bases
and rationales is necessary. The United Kingdom was chosen as a model for enforcement and an
international basis for comparison because of its position as one of the world’s premier art
market centers, especially the thriving art business in London. The conclusion is clear; given the
rationales underlying the very concept of the artist resale right and the minimal impact its
implementation had on the arts business in London, the United States should not hesitate in
adopting it into federal copyright law.
2
Indeed, copyright law in the United States is enshrined in the U.S. Constitution, which establishes the “exclusive
rights of authors as a means to maximize production of and access to intellectual creations.” See U.S. CONST. art I, §
8, cl. 8. Moral rights are seen as an impairment to commercial exploitation of work of art, e.g. when an artist
transfers copyright to a subsequent owner, such as a museum. See ART LAW HANDBOOK, § 1.04[C], at 53 (Roy S.
Kaufman, ed., 2000). That is not to say that moral rights are completely absent from U.S. copyright laws. Whereas
moral rights emphasize the artist’s personal interest in the work of art he/she creates, the basis of copyright
protection in the United States is a function of the pecuniary interest he/she holds in the work. 1 JOHN HENRY
MERRYMAN & ALBERT E. ELSEN, LAW, ETHICS AND THE VISUAL ARTS 144 (2d ed. 1987). See also 17 U.S.C. §§
101, 106A, 113(d).
5. 3
B. Summary
Given the current debate over implementation of the artist resale right in the United
States, some perspective on it will be necessary. Part II will provide an introduction to the basics
of copyright law as it has evolved over the past 250 years. Its philosophical roots will be briefly
explained and a description of the divergent paths that copyright law has taken in Europe and the
United States will be provided. Particular emphasis will be paid to the moral rights doctrine of
copyright law, as those are often seen as the basis for much of European copyright law and
accordingly, the artist resale right as it has been enacted there.
After this brief historical introduction, Part III will evaluate law as it stands in the United
Kingdom today. An overview of the European Union directive that gave it life, the 2001 EU
Resale Right Directive,3
will be accompanied by its reception and impact in the United Kingdom
and its international art markets. Turning attention back across the Atlantic Ocean, Part IV will
provide a layout of the current debate in the United States, discussing the strongest lines of
reasoning on each side, the possible criticisms of federal resale rights on the U.S. art market, and
the details of current lobbying efforts in Congress. It will also examine the brief forays that the
artist resale right has had in the United States, the California Resale Royalties Act4
.
Part V will conclude this paper by looking at the current attempts to incorporate the artist
resale right into American law. Its provisions will be discussed and the commentary of both its
proponents and detractors will be addressed, referencing the data and experience of the United
Kingdom in its own struggles with enactment and application of the right. It is hoped that the
reader will come to the conclusion that the United States can and should enact the artist resale
3
Council Directive 2001/84, art. 1-2, 2001 O.J. (L 272) (EC) [hereinafter Resale Right Directive].
4
California Resale Royalty Act of 1976, CAL. CIV. CODE § 986 (West 2011).
6. 4
right into federal law. The rights of the artist in continuing to benefit from all future sales of
his/her work are long missing and long overdue in American copyright law.
C. Author Bias
I am not a visual artist. I have never been a visual artist, nor do I plan on a career in the
visual arts for the future. For the vast majority of my life, I was only an outlier. Growing up, I
was lucky to have been part of a military family, with a father who made career in the United
States Air Force, working for Military Intelligence. His choice of career allowed for us to be
stationed all over the globe, with the vast majority of duty assignments in Europe. Both of my
parents took full advantage of the cultural offerings of our given locale. We frequented
museums, visited archaeological wonders, and made more than occasional forays into many of
Europe’s cultural centers for weekend trips and extended vacations. This early exposure led to a
continuing appreciation of fine art and its historical contexts.
This lifelong appreciation for fine art never translated itself into a desire to create.
However, it did provide other rewards. The large majority of my friends, then as now, are part of
the creative class. My current life partner is a fine art photographer whose images evoke
metaphors and ideas both old and new. I never stopped going to museums and, once I was on
my own, began to frequent galleries and artist happenings. As these galleries and happenings
featured up and coming artists as well as a smattering of more established, commercially
successful practitioners, I began to be exposed to the current state of the art world in all of its
conceptual, abstract, didactic, and hyperbolic glory.
This continued exposure and appreciation for the world of fine art reached a zenith in my
undergraduate program in anthropology. The vast majority of my coursework and research
emphasized studies in material culture—the physical evidence of a culture in the objects and
7. 5
architecture they have made. The very nature of the field is interdisciplinary, with a great deal of
art history and critical theory informing its study. Before completing my undergraduate studies,
I enrolled in a number of graduate level museum studies courses, with the goal of pursuing a
career with antiquities as its focus—the perfect blend of art and anthropology.
During a flight to the Republic of Malta in the summer of 2004 to participate in a Near
Eastern Studies program, I met a gentleman with many shared interests. He was an armchair
archaeologist with a passion for Neolithic stone construction and was headed to Malta for his
vacation. When he found out that I was to be participating in an archaeological dig as part of my
studies, he provided me with a bibliography that I endeavor to finish to this day and contacts that
would prove to be invaluable. As we were waiting for our luggage, he opined that I should look
into graduate work at Sotheby’s Institute of Art in London. He buttressed this suggestion with
Sotheby’s reputation as a premier dealer of antiquities coupled with the scholarship of its faculty.
After an eventful summer in Malta, I returned home to conclude my undergraduate
studies and was honored to be the sole nominee from my university’s undergraduate application
for the prestigious U.S. Fulbright scholarship. Not having a specific postgraduate institution in
mind, I remembered my discussions of the previous summer and looked into the programs at
Sotheby’s. Intrigued, I applied. One essay, two intercontinental phone calls, and three visits to
Sotheby’s (two in New York; one in London), and I was accepted for work on my master’s
degree in arts business and heritage management.
Both in my studies at Sotheby’s and my yearlong internship with a boutique art advisory
firm, I was exposed to the ins and outs of the multimillion dollar aspects of the international art
market. One topic on everyone’s lips was the debate over the implementation of the artist resale
right in the United Kingdom and what it might mean for the art business as a whole. Then and
8. 6
now, I have followed its progress in the United Kingdom, both first and second hand. With the
debate over its implementation (or lack thereof) in the United States before and since my return
in 2007, my interest in the topic has only increased. Now that my studies have led me to
comparative international law, I have a deeper understanding of its roots and implications with
respect to copyright protections both here and abroad.
II. A BRIEF OVERVIEW OF COPYRIGHT LAW
A. Historical Underpinnings
Interestingly, the historical bases for copyright law originate in the writings of
Continental philosophers better known for their works on epistemology, ethics, and other more
weighty metaphysical subjects. American copyright law and its corresponding focus on the
pecuniary aspects of the protection that the law affords rest largely on the writings of John Locke
and his expositions on natural law and property.
Though the earth, and all inferior creatures, be common to all men, yet every man
has a property in his own person: this no body has any right to but himself. The
labour of his body, and the work of his hands, we may say, are properly his.
Whatsoever then he removes out of the state that nature hath provided, and left it
in, he hath mixed his labour with, and joined to it something that is his own, and
thereby makes it his property. It being by him removed from the common state
nature hath placed it in, it hath by this labour something annexed to it, that
excludes the common right of other men: for this labour being the unquestionable
property of the labourer, no man but he can have a right to what that is once
joined to . . . 5
Locke and other proponents of Natural law claimed that an author or inventor is morally entitled
to enjoy the fruits of her labor and therefore that she has an inherent right to exclude others from
5
JOHN LOCKE, TWO TREATISES ON GOVERNMENT, (3d Ed. 1698), quoted in ROBERT MERGES, PETER MENELL, &
MARK A. LEMLEY, INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 2 (6th ed. 2012).
9. 7
copying her work.6
These theorists further argued that the state creates intellectual property
rights to induce people to create or disseminate works of authorship and inventions because, in
the absence of these precepts, there would be no economic incentive to produce original works.7
In contrast, European copyright law derives in large part from concepts of property
developed by Immanuel Kant. As viewed by Kant, private property is acquired not necessarily
by labor, but rather by one's joining of his individual Will to some object external to the self.8
As
a result of this process, the thing possessed comes to embody the owner's personality; and by like
reasoning a person may alienate property by removing his Will from the thing possessed.9
According to Hegel: “[T]hose goods, or rather substantive characteristics, which constitute my
own private personality and the universal essence of my self-consciousness are inalienable and
my right to them is imprescriptible. Such characteristics are my personality as such, my universal
freedom of will, my ethical life, my religion.”10
Both Kant and Hegel devoted some attention to the subject of property rights in works of
authorship. Kant distinguished between the book as an external thing which the publisher and,
thereafter, the purchaser may possess and alienate just as he may possess and alienate other
6
Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1, 3 (1997); For a more thorough
analysis and discussion of the natural law antecedents to copyright law, see Wendy J. Gordon, A Property Right in
Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1540-
83 (1993); see also Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 296-330 (1988); see
also Tom G. Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal
Objects, 13 HARV. J.L. & PUB. POL'Y 817, 821-35 (1990); see also Stewart E. Sterk, Rhetoric and Reality in
Copyright Law, 94 MICH. L. REV. 1197, 1227-39 (1996); see also Alfred C. Yen, Restoring the Natural Law:
Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 522-24 (1990).
7
See Hughes, supra note 6, at 302-05; see also William M. Landes & Richard A. Posner, An Economic Analysis of
Copyright Law, 18 J. LEGAL STUD. 325, 344-47 (1989); see also Neil Weinstock Netanel, Copyright and a
Democratic Civil Society, 106 YALE L.J. 283, 308- 11 (1996); see also Sterk, supra note 6, at 1204-09.
8
See G.W.F. HEGEL, PHILOSOPHY OF RIGHT §§ 44, 50, 51-58 (T.M. Knox trans., Oxford Univ. Press 1952) (1821);
IMMANUEL KANT, THE PHILOSOPHY OF LAW 81-84 (W. Hastie trans., Augustus M. Kelley Publishers 1974) (1796).
9
See HEGEL, supra note 8 §§ 51, 53, 65; KANT, supra note 8, at 101.
10
HEGEL, supra note 8, § 66; see also KANT, supra note 8, at 98-99 (discussing man's ability to dispose of his
property, but not himself, at will).
10. 8
wxternal things--and the book as the author's discourse or speech.11
As Kant saw it, mere
ownership of a book does not entitle the possessor to copy it, as copying would interfere with the
author's prerogative of deciding when and how he will communicate, via his publisher, with the
public.12
In a related writing, Kant viewed the author's prerogative in deciding how and when to
publish or speak as an inalienable part of his personality, with the conclusion that the author may
license, but not alienate, the right to copy his work.13
Similarly, Hegel contended that literary works, as well as other works such as inventions,
embody the author's "[a]ttainments, erudition, talents, and so forth," and that these attributes are
"owned by free mind and are something internal and not external to it."14
Hegel differed from
Kant, however, in arguing that the author's expression of his mental aptitudes, as embodied in a
work of authorship, is external to the author and therefore freely alienable and thus concluded
that the author may alienate the copyright in his work to the same extent that he may alienate any
other product of his labor.15
The above discussion may seem to be dry and best left for dissection and commentary by
philosophers and others studying the history of ideas. While that may be true to a certain extent,
11
See KANT, supra note 8, at 129-31.
12
See KANT, supra note 8, at 130. Kant appears to be saying that the plagiarist injures only the publisher of a given
work. See KANT, supra note 8, at 130 (arguing that "unauthorized Publication is a wrong committed upon the
authorized and only lawful Publisher, as it amounts to a pilfering of the Profits which the latter was entitled and able
to draw from the use of his proper Right").
13
IMMANUEL KANT, Von der Unrechtmassigkeit des Buchernachdrucks [hereinafter KANT, Injustice], in 4 THE
WORKS OF IMMANUEL KANT 219 (Artur Buchenau & Ernst Cassirer eds., 1922), cited to in Cotter, supra note 6, at 8.
14
HEGEL, supra note 8, § 43.
15
HEGEL, supra note 8, § 69. It is worth noting that neither Kant nor Hegel believed that it was wrong to copy works
of visual art. Kant distinguished a work of art (Kunstwerk) from a literary work by characterizing the former as an
author's "work" (opus)--an external thing--and the latter as an "action" or exercise of authorial power (opera). See
KANt, Injustice, supra note 13, at 220-21. Hegel argued that a copy of a "work of art," unlike an infringing literary
work or invention, "is essentially a product of the copyist's own mental and technical ability." See HEGEL, supra note
8, § 68.
11. 9
their ruminations on property and its relationship to the individual have fundamentally shaped
the jurisprudence of some of the world’s legal systems. As briefly discussed in the next section,
their ideas, while similarly based on property rights, have led to a disparate rationale for their
protection as it relates to the copyright an individual may have in the property of their own
creation.
B. The Differing Approaches to Copyright Law in Europe and the United States
Copyright laws as enacted throughout most of the world recognize two different types of
rights within copyright: moral rights and economic rights.16
Moral rights refer to the idea that a
copyrighted work is an expression of the personality and humanity of its author or creator.17
They primarily include the right to be identified as the author of a work, the right of integrity
(that is, the right to forbid alteration, mutilation or distortion of the work), and the right of first
divulgation (that is, making public) of the work. Indeed, the moral right in copyright was
invoked over 400 years ago by Marion, a sixteenth-century French lawyer: “[A]s the heavens
and earth belong to God, because they are work of his word . . . so the author (creator) of a book
(or other work subject to copyright) is its complete master, and as such can dispose of it as he
chooses.18
It seems that the justifications and rationales for moral rights come from a higher
authority that the courts of law or the ruminations of scholars on the topic. The creator cannot
always transfer moral rights to a third party, and some of them do not expire in certain
16
MERGES, et al., supra note 5, at 430, 431.
17
See generally Pamela Samuelson, ECONOMIC AND CONSTITUTIONAL INFLUENCES ON COPYRIGHT LAW IN THE
UNITED STATES. Available at SSRN: http://ssrn.com/abstract=234738; see also generally Jane C. Ginsburg, A Tale
of Two Copyrights: Literary Property in Revolutionary France and America, in, OF AUTHORS AND ORIGINS: ESSAYS
ON COPYRIGHT LAW 131, 137-38 (Brad Sherman & Alain Strowel, eds., 1994) (noting that historical origin of
American copyright law contains both natural rights and utilitarian impulses).
18
Quoted in Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and
Computer Programs, 84 HARV. L. REV. 281, 284 (1970).
12. 10
countries.19
Countries in the Anglo-American tradition, including the United Kingdom, the United
States, Canada, Australia and New Zealand, tend to minimize the existence of moral rights in
favor of an emphasis on economic rights in copyright. Economic or pecuniary rights recognize
the right of the holder to use, to authorize use of, or to prohibit the use of, a work, and to set the
conditions for its use.20
Different specific uses (or “acts of exploitation”) of a work can be treated
separately, meaning that the rights holder can deal with each right (including using, transferring,
licensing or selling the right) on an individual type-of-use basis. Economic rights typically
include the right of reproduction, the right of distribution by way of tangible copies, the right of
communication to the public (including public performance, public display and dissemination
over digital networks like the Internet), and the right of transformation (including the adaptation
or translation of a text work).21
It is at the intersection of these two distinct justifications for
copyright law that the artist resale right emerges.
C. Origins of the droit de suite
The droit de suite originated in France in 1920 and was subsequently codified as part of
in 1957.22
Looking further back in time, French authors were initially granted the exclusive right
of reproduction in 1791 and the right of performance in 1793.23
These two decrees were
19
See Samuelson, supra note 17.
20
See Ginsburg, supra note 17, at 138-39.
21
Id.
22
See Law No. 296 of March 11, 1957, art. 42 (France), reprinted in JOHN HENRY MERRYMAN & ALBERT E. ELSEN,
LAW, ETHICS, AND THE VISUAL ARTS 213 (2d ed. 1987).
23
Michael B. Reddy, The Droit de Suite; Why American Fine Artists Should Have the Right to a Resale Royalty, 15
LOY. L.A. ENT. L.J. 513 (1995).
13. 11
concerned solely with the pecuniary rights protected under Anglo-American copyright law and
acted as the basis for French copyright law.24
While this antecedent copyright legislation
theoretically provided fine artists with the same rights as authors of books, drama, or music, fine
artists were in fact unable to exploit their works because of the unique nature of paintings and
sculptures.25
Accordingly, the rationale supporting a resale royalty was the need to correct the
inherent inequity contained in copyright law.26
Abel Ferry, the original author and sponsor of the
French droit de suite legislation, stated as the basis for its implementation:
We are not asking for a share of the profits on a possible speculation, but for the
extension of the laws on artistic property . . . There is a gap in this developing
branch of the law on literary and artistic property. Literary men, musicians, and
playwrights can exact for each recital, each performance, each publication, a fee
which occasionally gives them large revenues. They derive their fortune from the
people generally while the painter earns his living from the single collector. What
he creates cannot be published but has, however, the character of personal
property and this is why the provisions of a code drafted when literary and artistic
property was not even known are urged against him. While the property of other
intellectual workers is full and undivided, that of the artist is incomplete.27
Under the French droit de suite, the artist received three percent of the total sales price of
his artwork each time it was sold at public auction or through a private gallerist or dealer,
provided the sale price is above a set amount. However, in practice, the law was only
enforceable as to auctions; the lack of any clear rules for implementation with private dealers
prevented its enforcement in those circumstances.28
The right is inalienable and extends to the
24
Id.
25
Id. By way of comparison, the right of reproduction enabled the author of a book to reap monetary gain from the
multiple copies of the book, the right did not accomplish the same benefit for the artist who produced a work of art
in a one- of-a-kind form that did not lend itself to reproduction. After the initial sale of the work of art, the artist did
not continue to receive royalties as did the writer; see also Register of Copyrights, infra note 97, at 38.
26
See Reddy, supra note 23, at 511-13; see also Register of Copyrights, infra note 97, at 63-65.
27
Katreina Eden, Comment, Fine Artists' Resale Royalty Right Should Be Enacted in the United States, 18 N.Y.
INT'L L. REV. 121, 125 (2005) (internal quotation marks omitted).
28
MERRYMAN & ELSEN, supra note 2, at 213; see also FRENCH INTELLECTUAL PROPERTY CODE, art. L122-8,
14. 12
artist for his or her life plus seventy years.29
The droit de suite is collected in France primarily
through two private authors' societies: Societé de la Proprieté Artistique et des Dessins et Models
(SPADEM) and the Association pour la Diffusion des Arts Graphiques et Plastiques (ADAGP).30
These societies are similar to American Society of Composers, Authors and Publishers (ASCAP)
and Broadcast Music, Inc. (BMI), the societies established to enforce composers' and performers'
rights in the United States.31
The droit de suite is currently implemented in most European
countries, with the exception of Switzerland. The droit de suite is not payable in the US or in
Japan. On June 9, 2010, Australia implemented legislation providing for it.32
III. THE ARTIST RESALE RIGHT IN THE UNITED KINGDOM
A. The Resale Right Directive of the European Union
Introduced in 2001, the EU Resale Rights Directive33
("Directive") applies to all original
works of art that are afforded copyright protection under the law,34
extending for the life of the
creator and seventy years after his/her death.35
The scope is limited to the following, all of
which are expressly in the wording of the Directive: " . . . works of graphic or plastic art such as
pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries,
available at http://195.83.177.9/code/liste.phtml?lang=uk&c=36. In 1987, droit de suite applied when the sale price
exceeded 10,000 francs. MERRYMAN & ELSEN, supra note 22, at 213.
29
MERRYMAN & ELSEN, supra note 2, at 214.
30
Reddy, supra note 23, at 516.
31
Chanont Banternghansa & Kathryn Graddy, The Impact of the Droit de Suite in the UK: an empirical analysis, 35
J CULT ECON 82 (2011).
32
Id.
33
Resale Right Directive, supra note 3, arts. 1-2.
34
Id. art. 1.
35
Id. art. 17.
15. 13
ceramics, glassware and photographs," and not including literary or musical works.36
The
European Commission hoped this limited scope would "help redress the balance between the
economic situation of authors of graphic and plastic works of art and that of other creators who
benefit from successive exploitation of their works," which invokes the similar discrepancy that
exists between the robust royalty schemes for authors and composers and the absence of any
such scheme for visual artists in the United States.37
While the member states had discretion over implementing respective laws to establish
resale rights, some specific requirements had to be met. The Directive states that while "it shall
be for the member states to set a minimum sale price … this minimum sale price may not under
any circumstances exceed EUR 3000."38
Additionally, the resale right conferred upon artists or
their heirs must be unwaivable and inalienable, and applies to "all acts of resale involving as
sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in
general, any dealers in works of art."39
B. Fears and Criticism of the droit de suite Prior to Implementation
Prior to full scale implementation of the artist resale right in the United Kingdom, those
who were opposed to it spoke openly about their concerns. A great many of these commentators
warned of an impending loss of business as those who wished to sell their works of art would
36
Id. art. 2.
37
Id. art. 3. See also, generally, Report from the Commission to the European Parliament, the Council and the
European Economic and Social Committee: Report on the Implementation and Effect of the Resale Right Directive,
COM (2011) 878 final (Dec. 14, 2011) [hereinafter EC Report], http://ec.europa.eu/internal_market/copyright/docs/
resale/report_en.pdf.
38
Resale Right Directive, supra note 3, art. 3.
39
Id. art. 1.
16. 14
likely go to markets, like the United States, where this imposition was not in place.40
Presaging
these and other like concerns, the Resale Right Directive set forth a requirement for a study to be
performed that examined the effect that it might have on the competitiveness of the market in
modern and contemporary art, with particular emphasis on those markets that did not apply the
artist resale right.41
In December of 2011, the European Commission responded to this requirement.42
This
report focused on the impact that the Resale Right Directive via broad based public consultation
with an eventual response from over 500 stakeholders.43
The vast majority of the respondents
were from ordinary citizens with a connection to the art markets, artists, art market professionals,
and deceased artists successors in title.44
For the most part, the Commission failed to show any
particular detriment or damage to the art market via implementation of the droit de suite among
member states.45
Furthermore, the Commission found no clear patterns “to link the loss of the
EU’s share in the global market for modern and contemporary art with the harmonization of
provisions relating to the application of the resale right in the EU.”46
It seems the fears were
40
Ben Hoyle, Fears of great art loss abroad as EU tax gets a broader canvas, TIMES OF LONDON (February 23,
2008), http://www.thetimes.co.uk/tto/arts/visualarts/article2422645.ece; see also UK Dealers Bemoan EU Art Tax;
US Lawmakers Introduce Droit de Suite Bill, ARTFIX DAILY (Dec. 19, 2011), http://www.artfixdaily.com/
news_feed/2011/12/19/4367-uk-dealers-bemoan-eu-art-tax-us-lawmakers-introduce-droit-de-suit; but see Jack
Hutchinson, Artist's Resale Right Call-to-Arms!, THE ARTISTS INFORMATION COMPANY (Aug. 2011), http://www.a-
n.co.uk/air/article/1413068/469392; Ivan Macquisten, Resale Right 2012 Extension Risks Thousands of Jobs,
ANTIQUES TRADE GAZETTE (July 5, 2010), http://www.antiquestradegazette.com/news/7603.aspx.
41
Resale Right Directive, supra note 3, art. 11.
42
Report from the Commission to the European Parliament, the Council and the European Economic and Social
Committee: Report on the Implementation and Effect of the Resale Right Directive, COM (2011) 878 final (Dec. 14,
2011) [hereinafter EC Report].
43
Id. § 1.3.
44
Id.
45
Id. § 2.3.1.
46
Id. § 5.1.
17. 15
largely unjustified and implementation began to happen.
C. The Law As It Stands Today in the United Kingdom
The UK implemented the Artist’s Resale Right to comply with required harmonization of
laws across the EU.47
Specifically, the Artist’s Resale Right provides an artist with an
inalienable right to receive a royalty from subsequent sales of their work. based on the price
obtained for any resale of an original work of art subsequent to the first transfer by the artist. 48
The Right defines an original work of art as ‘‘works of graphic or plastic art such as pictures,
collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics,
glassware and photographs’’. It therefore implicitly excludes what are sometimes termed the
‘‘decorative arts’’, such as furniture and jewelry. The right does not apply to resale between
individuals acting in their private capacity without the participation of an art market professional
or to resales by persons acting in their private capacity to museums that are not for profit and are
open to the public.
The Artist’s Resale Right in the UK currently applies only to works by living artists, in
contrast to the droit de suite in other countries, where it generally applies to both living artists
and their heirs, usually for 70 years after the death of the artist.49
It only applies to artists who are
European Economic Area (EEA) nationals or who are permanently resident in the EEA. No
single payment can exceed €12,500, and no royalties are payable on sales at prices less than
€1,000. At the time of this writing, the royalties are set at the following rates: 4% for the portion
47
The UK adopted the Resale Right Directive on September 27, 2001. The UK implemented the Artist’s Resale
Right on February 14, 2006 by Statutory Instrument 2006 No. 346. This document can be accessed at
http://www.opsi.gov.uk/si/si2006/20060346.
48
Banternghansa & Graddy, supra note 31 at 82.
49
Id. at 83.
18. 16
of the sale price up to €50,000, 3% for the portion of the sale price from €50,000 to €200,000,
1% for the portion of the sale price from €200,000 to €350,000, 0.5% for the portion of the sale
price from €350,000 to €500,000, and 0.25% for the portion of the sale price exceeding
€500,000.50
Sale prices are net of tax and payments are gathered through an independent
collecting society set up specifically for this purpose. The seller pays the royalty.51
Two nonprofit agencies, DACS (The Design and Artists Copyright Society) and ACS
(Artist Collecting Society), collect ARRs on behalf of registered members. According to their
website52
, DACS paid out out over £14 million ($22.5 million) in royalties to 19,000 artists and
estates in 2013. They even occasionally run competitions to encourage artists to sign up.53
D. Empirical Analysis of Its Effect on the Art Market in London
In what is by far the most thorough analysis of the implementation of the Artist Resale
Right in the United Kingdom, two economists conducted an extremely complex investigation
into whether certain fears regarding implementation were realized.54
They surveyed fine art
sales at auction in the United Kingdom, France, Germany, Switzerland, and the United States.
The first three representing countries where the droit de suite is in force; the latter two
representing where it is not. Across the board, their conclusions indicated that it did not produce
the ill effects predicted by opponents of the legislation. Firstly, the fear that enactment would
50
Sotheby’s, Rate of the Resale Royalty. This document can be accessed at http://www.sothebys.com/content/dam/
sothebys/PDFs/droitdesuite/ARR-EN.pdf.
51
Banternghansa & Graddy, supra note 31at 83.
52
http://www.dacs.org.uk
53
Tiernan Morgan & Lauren Purje, An Illustrated Guide to Artist Resale Royalties (aka ‘Droit de Suite’) (October
24, 2014), HYPERALLERGIC, http://hyperallergic.com/153681/an-illustrated-guide-to-artist-resale-royalties-aka-droit-
de-suite/
54
Banternghansa & Graddy, supra note 31
19. 17
stagnate prices in the art market was disproven; there was no general reduction in price growth
for art subject to the droit de suite relative to other countries or markets in the analysis.55
Secondly, the fears that implementation of the Artist Resale Right would drive those
selling their art to markets where it was not in place proved to be grossly overestimated.56
By
looking at the actual quantity of art sold at auction from 2006-11, their results showed the sales
in the United Kingdom subject to the droit de suite increased by 176%. Hardly cause for alarm;
rather, it seems that the market was booming in spite of the royalty regime.57
A brief summary of
their findings is in the table below, taken directly from their report.58
In fact, the data shows the
art market performing robustly almost everywhere they polled, with Switzerland being the sole
market experiencing a loss in sales. As the negative numbers applied to both subsets, art sold at
auction requiring the collection of the royalty and that art that did not, it could be inferred that art
sales at auction in Switzerland were simply down due to other factors outside the scope of their
study.
Percentage Quantity Growth (2006-11) (difference in quantity sold at auction)
UK US France Switzerland Germany
Subject to the droit de suite 176.15% 98.78% 40.10% -47.92% 36.55%
Not subject to the droit de suite 10.74% 68.87% 59.55% -12.50% 0.28%
55
Id. at 98.
56
Id. at 97.
57
Id.
58
Id. Table 10
21. 19
A. The California Resale Royalty Act of 1976
California is currently the only state in the US to have resale royalties legislation.
Royalties for visual artists were introduced by State Statute in 1976 and came into effect via the
California Resale Royalties Act (Resale Royalties Act) on January 1, 1977.64
As in the EU, the
right to the 5% resale royalty is inalienable; in practice, it may be waived under the legislation
only by a contract in writing providing for an amount in excess of the 5% of any resale to the
artists. The artist may also assign the right to collect the royalty payment to another individual or
entity; however, this does not constitute a waiver of the levy under the law.65
On the death of the
artist, the resale right is transferred to the artist’s heirs, legatees or any other personal
representative chosen by the artist under their Will or Trust for 20 years.66
To qualify for the
royalty, the seller must be a Californian resident or the resale must take place in California. The
artist must either be an American citizen or have been a resident of California for three years
before the resale.67
In place now for over twenty five years, this landmark royalty legislation is currently in a
state of limbo. In October 2011, a group of artists and estates, which included Chuck Close,
Laddie John Dill, the Robert Graham estate, and the Sam Francis Foundation, sued Sotheby’s,
Christie’s, and eBay, alleging that the auction houses were failing to pay royalties as provided
for under the Resale Royalty Act. Lawyers for the defendants argued that the Resale Royalty Act
63
Id.
64
The artists’ resale contract is also sometimes called a ‘Projansky Contract’ after lawyer Bob Projansky, who was
responsible for its rather controversial introduction.
65
CAL. CIV. CODE § 986(a).
66
CAL. CIV. CODE § 986(c). This right of transfer to heirs only applies to artists who die after January 1, 1983.
67
CAL. CIV. CODE § 986(b).
22. 20
was unconstitutional, as it purported to regulate transactions taking place outside the state of
California.68
Also, the auction houses argued that the 1976 Copyright Act and the California
Resale Royalties Act cover the same subject matter, and that while Congress granted various
rights to creators, it also limited the restraints that an artist could place on the art's subsequent
alienation69
—specifically, the "first sale doctrine."70
The first sale doctrine entitles the owner of
a copyrighted work to "resell that work without restriction by, or payment to, the creator."71
Sotheby's and Christie's explained that not only does the California Act create copyright-like
rights that appear to go directly against the first sale provision of federal copyright law, but this
incompatibility is a view supported by the Register of Copyrights.72
The judge presiding over the case agreed with the defendants. The constitutionality of the
Resale Royalty Act remains unresolved until the Ninth Circuit Court of Appeals rules on the
artists’ appeal.73
68
Estate of Graham v. Sotheby's Inc., 860 F. Supp. 2d 1117 (C.D. Cal. 2012).
69
Defendant’s Joint Motion to Dismiss the Complaints, Estate of Graham v. Sotheby’s Inc., No. 2:11-cv-8604-JHN-
FFM (C.D. Cal. Jan. 12, 2012) [hereinafter “Mot. To Dismiss”].
70
While the term “first sale doctrine” does not explicitly appear in the Copyright Act, it is recognized as doctrine
derived from the common law and codified in 17 U.S.C. §109(a) (2006).
71
Mot. to Dismiss, supra note 53, at 25 (quoting 17 U.S.C. § 109) ("Notwithstanding the provisions of section
106(3), the owner of a particular copy or phonorecord lawfully made under this title … is entitled, without the
authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."). See
also Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908) (holding that the first sale doctrine prevented a
copyright owner from dictating that its copyrighted work could not be resold for less than $ 1). Defendants argue
that the California Act's continuing 5% royalty gives artists a perpetual "financial interest in the further distribution
of the artwork and, like the restraint struck down in Bobbs-Merrill, the ability to enforce certain conditions on
subsequent resales." Mot. to Dismiss, supra note 53, at 29.
72
See Mot. to Dismiss, supra note 53, at 25, 31-32: Reporting on the droit de suite following enactment of the
Visual Artists Rights Act the Register wrote: “Does Congress want to eliminate, or even qualify, the First Sale
doctrine, and abandon well-settled principles of free alienability in Anglo-American property jurisprudence? . . .
Implementation of the royalty would require qualification of the First Sale doctrine.” In short, the Register
recognized that the Resale Royalty Act conflicts with the objectives of the Copyright Act and is therefore
preempted. Id.
73
Sam Francis Found. v. Christie's, Inc., 769 F.3d 1195 (9th Cir. 2014). On October 30, 2014, the 9th Circuit
23. 21
B. The Berne Convention
In 1886, the first Berne Convention for the Protection of Literary and Artistic Works met
to consider issues of international copyright protection to create an international standard for the
reciprocal protection of national copyright laws among member nations.74
As enacted, the Berne
Convention provides that "the protection of this Convention shall apply to: authors who are
nationals of one of the countries of the [Berne] Union, for their works, whether published or
not," and to authors who are not nationals of member countries, but whose work is first (or
simultaneously) published in a member country.75
Furthermore, the Convention seeks harmonization through national treatment-each
country sets its own copyright laws, which must meet minimum standards set out by Berne in
order to be in compliance with the Convention.76
"These minimum standards establish a floor
beneath which adherent countries agree not to let copyright protection fall … ."77
More
specifically, article 6bis of the Berne Convention establishes the floor protections for moral
rights,78
while a later article of the Berne Convention describes the currently optional resale
royalty provision as follows:
ordered en banc proceedings. Observers on both sides of the issue are eagerly awaiting their decision, as it could
influence the future of droit de suite legislation nationally.
74
Monica E. Antezana, Note, The European Union Internet Copyright Directive as Even More than it Envisions:
Toward a Supra-EU Harmonization of Copyright Policy and Theory, 26 B.C. INT'L & COMP. L. REV. 415, 418-19
(2003).
75
The Berne Convention for the Protection of Literary and Artistic Works, art. 3, para. 1, Sept. 9, 1886, S. Treaty
Doc. No. 99-27, 1161 U.N.T.S. 3 (last revised on July 24 1971) [hereinafter Berne Convention].
76
Graeme B. Dinwoodie, The Development and Incorporation of International Norms in the Formation of
Copyright Law, 62 OHIO ST. L.J. 733, 738-39 (2001). By adopting the national treatment approach, the Berne
Convention effectively established an "equal protection clause of international copyright law." Id. at 738.
77
Id. at 739.
78
Berne Convention, supra note 68, at art. 6bis.
24. 22
(1) The author, or after his death the persons or institutions authorized by national
legislation, shall, with respect to original works of art and original manuscripts of writers and
composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the
first transfer by the author of the work.
(2) The protection provided by the preceding paragraph may be claimed in a country of
the Union only if legislation in the country to which the author belongs so permits, and to the
extent permitted by the country where this protection is claimed.79
By finally joining the Berne Convention in 1988, the United States took a huge step
toward the creation and refinement of international standards of traditional copyright
protections.80
In complying with Berne by enacting the Visual Artists Rights Act of 199081
, the
United States moved closer to common internationally recognized protections for artists, by
recognizing moral rights for the first time in the United States.82
Adopting even the most limited
moral rights protections offered by VARA degraded arguments that copyright based systems are
incompatible with moral rights, since these moral rights alter traditional copyright to provide
incentives to those whose work's value lay in subsequent sale of the original work, rather than in
dissemination of copies.83
79
Id. at art. 14ter.
80
Christine L. Chinni, Droit D'Auteur Versus the Economics of Copyright: Implications for American Law of
Accession to the Berne Convention, 14 W. NEW ENG. L. REV. 174 (1992).
81
See Visual Artists Rights Act, infra note 84, and discussion in Part IV(D).
82
Chinni, supra note 80, at 174.
83
See Id. ("Real recognition of authors' moral rights requires acknowledgment that an artist's product is different
from that of a manufacturer in a fundamental way, which, in turn, requires that a society place a high value on art.").
25. 23
C. Attempts to Bring the Artist Resale Right to the United States
The earliest provision for including the resale royalty right into the United States and a
preemptive attempt at including moral rights into the copyright regime was the Visual Artists
Rights Act of 1990 (VARA).84
VARA protects the personality and reputation of artists by
granting them the right of attribution and the right of integrity in works of visual art that meet the
statutory requirements listed above.85
The right of attribution gives the artist the right to have his
work known as his, and to prevent works that he did not create from being attributed to him.86
Thus, American artists have the moral right to be known for what they create, and not to be
associated with works they did not create.87
Under VARA, artists who create work have a right
of attribution, which allows the author to prevent the use of his name if the work has been
modified, distorted or manipulated to the point that association with the piece would prejudice
the reputation or honor of the artist.88
Furthermore, VARA includes a right of integrity that gives artists the moral right to
preserve the work in the intended state, along with the right to require owners to maintain the
integrity of the work.89
The right of integrity grants the artist a moral right to prevent those who
own his work from intentionally distorting, mutilating or modifying it if such action would be
84
Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 608(b), 104 Stat. 5089, 5132 (1990) [hereinafter Visual
Artists Rights Act].
85
MERRYMAN & ELSEN, supra note 22, at 309.
86
Visual Artists Rights Act 603(a)(1)(A)-(B).
87
Id.
88
Id. 603(a)(2).
89
Id. 603(a)(3)(A)-(B).
26. 24
prejudicial to the artist's honor or reputation.90
Additionally, if an artist's work is "of recognized
stature," the artist has the right to prevent the intentional or grossly negligent destruction of that
work of art.91
However, VARA did not create the economic incentives that authors of other
types of work receive.92
Interestingly, the right against destruction of certain works of art
depending on their "stature," seems to be recognition in American law of a French justification
for granting moral rights to visual artists.93
This justification is based on the belief that the whole
society retains an interest in works of art as pieces of cultural property, and that this societal
interest should be protected in certain situations.94
Keeping in step with the abovementioned legislation within the European Union and
perhaps extending the reach of VARA, Senator Herb Kohl (D-WI) and Congressman Jerrold
Nadler (D-NY) introduced the Equity for Visual Artists Act (EVAA) in 2011.95
Among other
things, the EVAA required, whenever a work of visual art is sold for at least $10,000 at an
auction by someone other than the authoring artist, that the entity collecting the money or other
consideration pay a royalty equal to 7% of the price to a visual artists' collecting society.
Royalties would have been split evenly between the author of the work and an escrow account to
support future purchases by nonprofit art museums. Rep. Nadler stated that visual artists
deserved their share in the profits that their work generates, calling it a “fairness and equity
90
Id. 603(a)(3)(A).
91
Id. 603(a)(3)(B).
92
Jennifer B. Pfeffer, Comment, The Costs and Legal Implications Facing Implementation of the European Union's
Droit de Suite Directive in the United Kingdom, 24 NW. J. INT'L L. & BUS. 547-48 (2004).
93
MERRYMAN & ELSEN, supra note 22, at 309.
94
Id. at 310. (providing the rationale that because society as a whole holds this interest, the work of art should be
protected from destruction even if both the artist and the owner want the work destroyed).
95
Equity for Visual Artists Act, H.R. 3688, 112th Cong. (2011).
27. 25
program.”96
It failed to attract a single co-sponsor and died in committee.
Not to be daunted, in February of this year, U.S. Senators Tammy Baldwin (D-WI) and
Ed Markey (D-MA), along with Representative Jerrold Nadler (D-NY) introduced yet another
bill that would give visual artists royalties on the resale of their work. The bill is called the
American Royalties, Too (ART) Act of 2014.97
While it has many similarities to the failed
EVAA mentioned above, it attempts to be more palatable to those who view it negatively. The
current ART Act adjusts the numbers found to be so troublesome in the EVAA, proposing a 5%
royalty (for sale prices up to $35,000) on works sold for $5,000 or more at auction.98
Other
provisions state that the resale royalty applies to any auction where the entity conducting the
auction has sold at least $1 million of visual art during the previous year.99
It also provides that royalties are collected by visual artists’ copyright collecting societies
who must distribute the royalties to the artists or their heirs at least four times per year100
and
allows U.S. artists to collect resale royalties when their works are sold at auction in the E.U. and
the more than 70 other countries that have droit de suite legislation enacted.101
The ART Act
requires further study by the Copyright Office after five years to determine the effects of the
resale royalty on the art market and whether it should be expanded to cover works sold by
96
Whitney Kimball, Shouldn’t Artists Benefit When Their Paintings Auction for Millions?, SLATE ,
http://www.slate.com/articles/arts/culturebox/2014/06/artists_royalties_and_droit_de_suite_the_american_royalties_
too_act.single.html.
97
American Royalties Too Act of 2014, S. 2045, 113th Cong. (2013-2014) [hereinafter ART Act].
98
Id. §§ 3(b)(2)(B)(i)-(ii).
99
Id. § 2(a)(1).
100
Id. § 2(a)(1).
101
Id. § 3(b)(6).
28. 26
dealers and other art market professionals.102
This came quickly on the heels of a December 2013 report published by the US
Copyright Office which encouraged Congress to consider legislative action. In it and contrary to
their recommendations of a prior opinion on the artist resale right103
, they advocate for the
adoption of an artist resale right into federal law. To quote from the report directly:
The Copyright Office finds no significant legal or policy impediments to adoption
of a US resale royalty, and indeed supports consideration of a a resale royalty
right as one option to address the historic imbalance in the treatment of visual
artists … Given most artist’s comparative lack of bargaining power in relation to
auction houses, galleries, and other art market professionals, some level of
congressional involvement may be necessary for these negotiations to achieve
meaningful results.104
Furthermore, the report also references a study published in 2011, which analyzed artist wages
and salaries across specific industries. The study suggested that the median wages for fine artists
(including painters, sculptors, illustrators and multimedia artists, but excluding photographers
and graphic designers) was $33,982 whereas writers and authors (such as novelists, playwrights,
or script writers) received an appreciably higher wage of $44,794.105
It is difficult to argue with the above conclusions. 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
102
Id. § 3(b)(3)(B).
103
Register of Copyrights, U.S. Copyright Office, DROIT DE SUITE: THE ARTIST’S RESALE ROYALTY RIGHT (1992).
104
Register of Copyrights, U.S. Copyright Office, RESALE ROYALTIES: AN UPDATED ANALYSIS 66 (2013)
(emphasis added).
105
NATIONAL ENDOWMENT FOR THE ARTS, RESEARCH NOTE #105: ARTISTS AND ARTS WORKERS IN THE UNITED
STATES: FINDINGS FROM THE AMERICAN COMMUNITY SURVEY (2005-2009) AND THE QUARTERLY CENSUS OF
EMPLOYMENT AND WAGES (2010) (OCT. 2011), available at http://arts.gov/sites/default/files/105.pdf.
29. 27
perfect copies, and the copyright law generally enables them to be paid a share of every copy.106
It would seem that the agency charged with administering copyright law agrees that fairness and
equity considerations should be taken into account when any discussion of the proposed
legislation occurs. Only time will tell if that carries the day.
V. CONCLUSION
While the debate continues in the halls of government over the adoption of the artist
resale right in the United States, there remains a voice not often heard in the debate—that of the
artist herself. Policy makers, legislators, and leaders in the arts business community all have
their views, backed up with studies or legal precedent(s). All of these are valid and contribute to
the overall success or failure of its adoption. Where is the voice of the one who is directly
affected by the law? Where is the practitioner “working his ass off” (as Rauschenberg so
succinctly stated) in all of this? It is notable that the Congressional release accompanying the
ART Act of 2014 includes a quote from Frank Stella, a titan of contemporary art.
Visual artists are the only members of the creative community in the United
States who do not receive residual payments for their works. … The benefits
derived from the appreciation in the later sale of their works accrue entirely to the
collectors, auction houses, and galleries. The adoption of the droit de suite in my
country is therefore long overdue.107
The following event may shed a little light on what current artists have to say about the artist
resale right.
Auction houses have sales year round. Some are more attended than others; certainly,
none are as well attended or covered in the general media as those of the Old Masters and the
106
UNITED STATES COPYRIGHT OFFICE, supra note 49, at 65.
107
Jillian Steinhauser, Congressmen Propose National Resale Royalty Act for Artists (Feb. 26, 2014),
HYPERALLERGIC, http://hyperallergic.com/111496/congressmen-propose-national-resale-royalty-act-for-artists/.
30. 28
Contemporary Art auctions. For the purposes of this discussion, I would like to recount a friend
and colleague’s story surrounding Christie’s contemporary art auction in May 2014.108
True to
form, the show had not a little shock value with the title “If I live I’ll see you Tuesday…”.
Christie’s flamboyant and imminently prescient International Specialist, Loïc Gouzer, put the
show together around a mood and an atmosphere, the darker side of what art can be. In his own
words,
There’s very often some kind of flashy and instant gratification factor to art, and
then there’s the other side; almost like matter and anti-matter. There’s a constant
tension in art between happiness and sadness, life and death – this sale was about
trying to explore this ‘anti’ part of art creation. It’s like music in the 1960s – you
had the Beatles and the Rolling Stones, the Marilyn and the Electric Chair – this
sale explores the legacy of the Electric Chair.109
One particular piece up for sale in this auction was the work of Brooklyn-based artist
Wade Guyton. This untitled print originally sold for around $8,000 in 2005 according to sources
from his gallery of representation. The pre-sale estimate for the piece was $2.5 million to $3.5
million. Possibly disgusted by the estimate and the simple fact that he would see nothing in the
matter of compensation once the sale concluded, Guyton printed dozens of identical images and
posted photos to his Instagram account—instantly devaluing the uniqueness of the work on
sale—with foreboding hashtags like #winteriscoming, #deflationarypolicy, and #ifiliveauction.
Hours later, the work sold . . . for $3.5 million.110111
108
Chrissy Crawford, founder and CEO of ArtStar and Little Collector, two prominent internet-based art enterprises
that showcase up and coming as well as established contemporary artists. ArtStar offers limited runs of pieces at
entry-level prices, while Little Collector offers artwork that, while appealing to a younger audience, is nonetheless
sourced from the aforementioned artists. We attended Sotheby’s Institute of Art, London together and worked
together with 1858, Ltd., a boutique art consultancy firm.
109
Christie’s New York Press Release, Release: “If I Live I’ll See You Tuesday . . . “, April 15, 2014,
http://www.christies.com/about/press-center/releases/pressrelease.aspx?pressreleaseid=7182.
110
Christie’s Sale 3495, Lot 16, Auction Results, http://www.christies.com/lotfinder/paintings/ wade-guyton-
untitled-5792587-details.aspx?from=salesummary&intObjectID=5792587&sid=b2d1a535-a7dc-4f66-8ae1-
1ffa5502f64a.
31. 29
Wade Guyton, Untitled, Epson UltraChrome inkjet on linen, 2005
It is telling that in more than 70 countries
that have now adopted some form of artist
royalties, the only major debate has come from the
U.K., which has the second largest art market after
the U.S., and adopted artist royalties in 2006. The
forecasted implosion never happened there, and
they will likely not happen here. Artists’ royalties
do not harm the market. They can provide some
measure of security to artists, especially later in
life; they are common most everywhere in the
world; and the United States Copyright Office
recommends them. If the United States had already adopted a national resale royalty, American
artists would currently be receiving royalty payments from countries with equivalent laws—in
addition to royalties from sales made here. This means that American artists have been missing
potential royalty payments for quite some time. It is time for them to become a part of American
law, for all of the right reasons.
111
It is difficult to say whether or not Mr. Guyton’s actions contributed to the final price paid for his work. The
unique mechanisms by which artwork is valued—by both those who sell it and those who buy it—are well beyond
the scope of this paper. See UNDERSTANDING INTERNATIONAL ART MARKETS AND MANAGEMENT (Iain Roberson
ed., 2005); WILLIAM D. GRAMPP, PRICING THE PRICELESS: ART, ARTISTS, AND ECONOMICS (1989); JUDITH
BENHAMOU-HUET, THE WORTH OF ART (2001).
