Resale rights for artists: a worthy debate

The sale of the painting “Past Times” of the Afro-American artist Kerry James Marshall for $21M (ie 800 times its original price) by Sotheby’s last March gave Marshall the title of the “highest paid living Afro-American artist”. It’s not thanks to this particular sale since the artist didn’t get paid at all. Of course he’s doing well and can benefit from this increase of his prices during his lifetime since he’s still living and creating. But the huge gap between the original price and its new one in 20 years, raises again the question of resale rights.

Indeed contemporary artists do not benefit directly of this type of sale because a global regulation that preserves them is still missing (list of countries providing resale rights). In the US or China, leaders on the market, there isn’t any regulation in force that recognizes the Artist’s Resale Right.

France was the first country providing for the A.R.R. when, in 1920, “Droit de suite” was introduced. The right’s origins date back to the experience of the family of the French painter Jean-François Millet. After his death in 1875, his painting “L’Angelus” was sold for $150,000 and his destitute family never saw a penny. Still, the royalties are capped and in Europe, Marshall  would have made a bit less than $15,000 according to the current legislation.

Isn’t it fair that auction houses and dealers share some parts of the benefits with artists from whom they profit?

Many people think so and the online platform Feral Horses is among them. Feral Horses aims to democratize the art market by allowing art lovers to co-own contemporary artworks, and by helping contemporary artists to establish themselves and be repaid for their work.  With Feral Horses, artists are given the opportunity to make IPOs of their artwork on the “Primary Market” and once an artwork reaches a sales target set by artists themselves, it has access to the “Secondary Market”, where investors are free to exchange their shares. Artists get a total of 90% from the sale, with a commission of only 10%.

In 2015, the 2014 American Royalties Too Act (ART) failed to pass and a regulation on the subject in the US is not likely to happen soon. The arguments against the artist’s resale right are that it will have a detrimental effect on global art markets, lowering prices, reducing sales volumes and generally making markets less competitive. They also claim it places a heavy burden on art professionals.

As mentioned in the article by Catherine Jewell in the World Intellectual Property Organization (WIPO) Magazine, other issues are that “the artist’s resale right, where it exists, is payable to living artists and usually for up to 70 years after their death. It is an “inalienable” right, meaning that it belongs to artists and their heirs and cannot be sold or waived. But are there circumstances under which it makes sense for an artist to be able to transfer the right to a third party, such as an art foundation? Who is responsible for paying the resale royalty – the buyer or the seller? What is an appropriate royalty rate? And what should be the basis for its calculation – the sales price or the auction price?”

These questions and many others will keep art professionals, lobbyists and policymakers busy in the years to come.

Initiative as the ones of Feral Horses certainly contribute in a positive direction. For all artists, an advice I received from art dealer Michael Findlay, director at Aquavella Galleries and former International Director of Fine Arts and a member of Christie’s Board of Directors is “Invest in yourself! Of course if you don’t sell the question is irrelevant but as soon as you do, do not give away all your best work to the dealer even if they pressure you. Keep a few for the future you or your children”.