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News & ArtsWednesday, October 26, 2011
Visual Art Should Visual Artists Get Royalties?
Posted by Jen Graves on Wed, Oct 26, 2011 at 11:02 AM
In the LAT yesterday, Jori Finkel describes an interesting lawsuit that's about to go to trial, in which an artist is suing a collector for a 5-percent cut of the resale of his original paintings.
In the United States, visual artists, unlike musicians, usually only make money once in the sale of an artwork. After a work is sold the first time, other people make money on it—not the artist.
But California is the only state with a law that gives visual artists royalty fees. California's law says artists are entitled to 5 percent of the sale price when their works are resold. (It applies only to one-of-a-kind originals, not editioned photographs or prints.)
The law is relatively easy for collectors to disregard. Many sales are made in private. Other times, even artists who know they've been screwed don't sue, because lawyers' fees could zero out resale payments.
But painter Mark Grotjahn is taking a stand against collector Dean Valentine—and this is the first real test of the 1976 law in the courts. Class-action lawsuits against Christie's and Sotheby's, alleging violations of the same law and involving Chuck Close along with other artist-plaintiffs, are also in the works.
It's not a case of rich collector versus poor artist, says Valentine. (His point is taken: Most artists will never make as much money as Grotjahn did even the first time his works were sold.) "As a California resident," Valentine says, he doesn't feel he should be "disadvantaged." (Another point might be taken here: The idea of Valentine as "disadvantaged" in any way whatsoever is ridiculous.)
But because Valentine is a major collector of rising artists in L.A., it could be unfortunate if he decided to take his money elsewhere.
Here's a larger question: Is there any good reason why American artists don't make royalties?
1
Should they get royalties in the US?
No.
Because they're serfs, since they aren't Corporations.
A few tossed coppers should keep them away from our yachts.
No.
Because they're serfs, since they aren't Corporations.
A few tossed coppers should keep them away from our yachts.
3
Musicians are often selling reproduction rights to a work, where this is talking about the re-selling of a given piece of art. If the issue is that artists are not making money off of reproductions, that they're "selling" the copyright to the visual artwork without any royalties, I can see how this is a problem. However, I don't see how an artist is entitled to a cut of the second sale of an object that they sold. Neither Led Zepplin nor Alfred Publishing House get any money if I resell a record I've purchased; why should Grotjahn get money if Valentine resells a painting that he's purchased?
4
I like artists as much as the next guy, but this doesn't make any sense. Collectors take risks on up and coming artists, and that's part of the art market and always has been. I'd only be OK with this if collectors could recoup their losses from an artist if they sell a work for less than they paid for it.
I'm a fan of the first sale doctrine: you buy something, it's yours to do with as you please. Making exceptions seems like a mess. What about exotic cars, which are arguable art? Should Ferrari get a cut when someone resells a classic car? And video games -- they have some great visual art.
It seems like a well-intentioned move that leads to chaos and absurd situations.
I'm a fan of the first sale doctrine: you buy something, it's yours to do with as you please. Making exceptions seems like a mess. What about exotic cars, which are arguable art? Should Ferrari get a cut when someone resells a classic car? And video games -- they have some great visual art.
It seems like a well-intentioned move that leads to chaos and absurd situations.
5
The primary difference is that musicians "make once sell many" and visual artists make one and sell one. Performing musicians who do not record or license recordings don't get royalties. They get paid when they play. For example, Jazz musicians who primarily improvise.
So musicians, for better or ill, are in a manufacturing model. The composer designs a product (called a "song") and arranges for it to be manfactured (called a "CD"). They can even arrange for the product to be publically consumed on an ongoing basis (called "radio"). Since there are many of these things, a small royalty can be charged, and since there are so many it is economically feasible to set up entities to license, track, calculate, and distribute royalties (ASCAP, BMI, Bug).
Visual artists, on the other hand, make one thing. Some of them (Warhol, Haring) arrange for the thing to be manufactured (called "posters" or "prints") and sell them to many people. But the visual artists working in the traditional vein of "the great artist" are explicitely gambling that their work will excite collectors to purchase the work, which gains a very large part of it's value *from* the scarcity of the work. As such, it's not economically feasible to set up an agency to track sales, or collect and distribute royalties.
Moreover, many artists (especially prior to WWII) cultivated direct relationships with their best patrons, such that negotiations as to rights would have been one on one, and given the enormous bargaining power held by the patron, likely have eliminated the royalty provision. Musicians, of course, negotiated their royalty rates (and non-waivability of such) through Congress.
I'm not saying any of this is right, true, or ought to be. But the very profound differnces in how musicians and visual artists operate makes the differences (and praticalities) of royalties easy to understand.
More...
So musicians, for better or ill, are in a manufacturing model. The composer designs a product (called a "song") and arranges for it to be manfactured (called a "CD"). They can even arrange for the product to be publically consumed on an ongoing basis (called "radio"). Since there are many of these things, a small royalty can be charged, and since there are so many it is economically feasible to set up entities to license, track, calculate, and distribute royalties (ASCAP, BMI, Bug).
Visual artists, on the other hand, make one thing. Some of them (Warhol, Haring) arrange for the thing to be manufactured (called "posters" or "prints") and sell them to many people. But the visual artists working in the traditional vein of "the great artist" are explicitely gambling that their work will excite collectors to purchase the work, which gains a very large part of it's value *from* the scarcity of the work. As such, it's not economically feasible to set up an agency to track sales, or collect and distribute royalties.
Moreover, many artists (especially prior to WWII) cultivated direct relationships with their best patrons, such that negotiations as to rights would have been one on one, and given the enormous bargaining power held by the patron, likely have eliminated the royalty provision. Musicians, of course, negotiated their royalty rates (and non-waivability of such) through Congress.
I'm not saying any of this is right, true, or ought to be. But the very profound differnces in how musicians and visual artists operate makes the differences (and praticalities) of royalties easy to understand.
6
US visual artists don't get royalties the way that think of for actors, directors, etc. But, they also retain an important potential revenue stream. When a visual artist sells a painting to a collector, (usually) he is selling the physical painting but not the copyright to the painting. So, the artist can continue to profit off the painting by making and selling prints, cards, posters, t-shirts, mugs, licensing the work for commercial use, etc. Collectors don't always understand that - museums do, and usually will purchase some/all of those rights from the artist if they wish to have them, regardless of whether they get the actual piece of art directly from the artist or through a collector.
7
US copyright law needs a ton of updates, and the area of royalties is one of them - not just in the visual arts. Artists' moral rights also need clearer and modern codification in copyright law in this country.
A savvy artist actually could probably include a contract with any sale of any work with language specifically requiring the buyer to agree to pay a royalty on a future sale and to require the same of successor buyers, or to prohibit the further sale of the work without the artist's consent or being a party to a future sales agreement or something along those lines. Alternatively sales of works could be set up more like leases or sublicensing agreements leading to full ownership over time with certain conditions. Low-level artists couldn't insist on such provisions, but established artists certainly could.
A savvy artist actually could probably include a contract with any sale of any work with language specifically requiring the buyer to agree to pay a royalty on a future sale and to require the same of successor buyers, or to prohibit the further sale of the work without the artist's consent or being a party to a future sales agreement or something along those lines. Alternatively sales of works could be set up more like leases or sublicensing agreements leading to full ownership over time with certain conditions. Low-level artists couldn't insist on such provisions, but established artists certainly could.
9
Interesting last point. So arguably, if I "bought" all rights, then I'd pay a royalty if I resold. But as I only bought one physical instance of the work (and to roll in the second comment above) and I took all the risk of whether the art would retain/gain/lose its value, then I should own full profit (if any).
What about someone who makes unique pieces of furniture, or customizes motorvehicles. I am sure these groups all consider themselves "artists" in the full sense
What about someone who makes unique pieces of furniture, or customizes motorvehicles. I am sure these groups all consider themselves "artists" in the full sense
10
I'm in favor of this law and love that the legislature protected artists in this way.
Here's an overview of the law: http://www.cac.ca.gov/resaleroyaltyact/r…
And the points made above about limited production vs. mass production are correct. That's why the statute's drafted the way it is (' "Fine art" means an original painting, sculpture, or drawing, or an original work of art in glass.'). Part of the policy behind this law is that the artist should benefit from the appreciation in monetary value of his/her work. There is magnificent cultural value in art, and enabling artists to create by profiting from this appreciation helps preserve that contribution.
@4, the first sale doctrine is more narrow than that.
Here's an overview of the law: http://www.cac.ca.gov/resaleroyaltyact/r…
And the points made above about limited production vs. mass production are correct. That's why the statute's drafted the way it is (' "Fine art" means an original painting, sculpture, or drawing, or an original work of art in glass.'). Part of the policy behind this law is that the artist should benefit from the appreciation in monetary value of his/her work. There is magnificent cultural value in art, and enabling artists to create by profiting from this appreciation helps preserve that contribution.
@4, the first sale doctrine is more narrow than that.
11
@10: The first sale doctrine is exactly that. From http://en.wikipedia.org/wiki/First-sale_… :
But hey, protect the artists all you want. BTW, if the value of artwork falls, do you think the artist should reimburse the collector for some or all of the difference? Or do you just want collectors to offer artists' less money initially to cover that risk?
The doctrine allows the purchaser to transfer (i.e., sell, lend or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder's rights to control the change of ownership of a particular copy ends once ownership of that copy has passed to someone else, as long as the copy itself is not an infringing copy.
But hey, protect the artists all you want. BTW, if the value of artwork falls, do you think the artist should reimburse the collector for some or all of the difference? Or do you just want collectors to offer artists' less money initially to cover that risk?
12
Artists can do that by continuing to produce works in the same style and vein as the artwork that's now selling for millions. Do you think established artists are still selling their new works for $900 a pop?
Part of the policy behind this law is that the artist should benefit from the appreciation in monetary value of his/her work.
Artists can do that by continuing to produce works in the same style and vein as the artwork that's now selling for millions. Do you think established artists are still selling their new works for $900 a pop?
13
@11, Your comment was "you buy something, it's yours to do with as you please." That is incorrect. For example, you cannot rent or lease certain copies for direct or indirect commercial advantage. § 109(b)(1)(A). Additionally, § 109(c) provides only a limited exception to the § 106(5) display right. The first sale doctrine is an exception to the distribution right primarily; the other § 106 rights remain largely intact, which is one reason there is no digital first sale doctrine. Your statement that you can do as you please is overbroad. Wikipedia can be a clumsy convenience.
As to your question about the artist reimbursing the buyer for the difference if the value drops, I assume you mean in situations where there's a further sale and not just a post-purchase appraisal. But, no, that would undermine the policy and penalize artists for trying to make a living. The buyer bears the risk of purchasing something that may depreciate. But I think most art buyers (myself included) purchase art not because we're going to turn a profit on it, but because there's an intangible benefit to us in seeing the piece on our wall every day. When the buyer is motivated by profit, even if only in part, they have purposefully assumed the risk that they may lose money.
As to your question about the artist reimbursing the buyer for the difference if the value drops, I assume you mean in situations where there's a further sale and not just a post-purchase appraisal. But, no, that would undermine the policy and penalize artists for trying to make a living. The buyer bears the risk of purchasing something that may depreciate. But I think most art buyers (myself included) purchase art not because we're going to turn a profit on it, but because there's an intangible benefit to us in seeing the piece on our wall every day. When the buyer is motivated by profit, even if only in part, they have purposefully assumed the risk that they may lose money.
14
@11, see that word "copy" in there?
That's the difference; musicians (and authors and filmmakers) aren't selling the original, they're selling a copy (an LP, CD, DVD, book, etc.) You could maybe say that an original artwork is like the master tape of a recording, but even then, the complexities of record-making render the comparison mostly useless.
Art-making is a different kind of culture-making. If artists should get copyright, it will have to be a new category of copyright law, not an extension of the one for music. I think it's an intriguing idea, especially given the absurdity of people "earning" many millions of dollars simply by holding on to a thing they bought for almost nothing.
The problem I see is that copyright as it now stands is a fathomless maw of corporation bullshit. What you will end up with is a system by which Dale Chilhuly's grandchildren will be receiving large checks from strangers their whole lives. Most copyrights nowadays are in the hands of corporations, not art- or music-makers.
I favor a "flat-rate" copyright: 30 years or artist's death, whichever comes last, with no inheritance rights and no corporate rights allowed. There's no reason the children of Michael Jackson (or Paul McCartney when the time comes) should receive additional money from royalties on top of the already vast estates they inherit. There's also no reason Dick James, "publisher" of The Beatles, should have received something like a billion dollars for doing no work whatsoever.
I think about this subject a lot with regard to the impoverished, isolated, frequently preyed-upon Australian Aboriginal artists I favor. They are usually supporting a whole community of people from their earnings, much of which typically goes for drink, which is destroying those same communities. The situation is greatly improved these days, with artist's collectives and community art centers managing the rights and so on, but the whole subject is such a collision of values and worldviews (which is also one of the things that makes it so interesting, of course). But overall I'll bet the artists themselves average much, much less than one percent of the prices secured in Sotheby's; a hundred dollars for a painting worth $25,000 isn't unheard of by any means. Royalties are an appropriate solution there.
And in fact, they have a royalty scheme there, that just started in June of last year. This scheme is complicated, for the reasons outlined above, and I gather it's not regarded as a huge success. But one thing that's nice is that it's forcing art centers, dealers, and collectors to keep better records, something that's always been a little dubious in the Aboriginal Art world. The "first sale" of a lot of paintings is made out in the desert from the artist by a disreputable shyster in a 4WD.
More...
That's the difference; musicians (and authors and filmmakers) aren't selling the original, they're selling a copy (an LP, CD, DVD, book, etc.) You could maybe say that an original artwork is like the master tape of a recording, but even then, the complexities of record-making render the comparison mostly useless.
Art-making is a different kind of culture-making. If artists should get copyright, it will have to be a new category of copyright law, not an extension of the one for music. I think it's an intriguing idea, especially given the absurdity of people "earning" many millions of dollars simply by holding on to a thing they bought for almost nothing.
The problem I see is that copyright as it now stands is a fathomless maw of corporation bullshit. What you will end up with is a system by which Dale Chilhuly's grandchildren will be receiving large checks from strangers their whole lives. Most copyrights nowadays are in the hands of corporations, not art- or music-makers.
I favor a "flat-rate" copyright: 30 years or artist's death, whichever comes last, with no inheritance rights and no corporate rights allowed. There's no reason the children of Michael Jackson (or Paul McCartney when the time comes) should receive additional money from royalties on top of the already vast estates they inherit. There's also no reason Dick James, "publisher" of The Beatles, should have received something like a billion dollars for doing no work whatsoever.
I think about this subject a lot with regard to the impoverished, isolated, frequently preyed-upon Australian Aboriginal artists I favor. They are usually supporting a whole community of people from their earnings, much of which typically goes for drink, which is destroying those same communities. The situation is greatly improved these days, with artist's collectives and community art centers managing the rights and so on, but the whole subject is such a collision of values and worldviews (which is also one of the things that makes it so interesting, of course). But overall I'll bet the artists themselves average much, much less than one percent of the prices secured in Sotheby's; a hundred dollars for a painting worth $25,000 isn't unheard of by any means. Royalties are an appropriate solution there.
And in fact, they have a royalty scheme there, that just started in June of last year. This scheme is complicated, for the reasons outlined above, and I gather it's not regarded as a huge success. But one thing that's nice is that it's forcing art centers, dealers, and collectors to keep better records, something that's always been a little dubious in the Aboriginal Art world. The "first sale" of a lot of paintings is made out in the desert from the artist by a disreputable shyster in a 4WD.
15
@12 agreed, in most cases. But the vast majority of artists do not sell works for millions. The appreciation, if any, is more modest.
16
The "art royalty" is not unique; it's in fact the law throughout the EU and other countries. It's called "droit de suite". For a good overview of some of the issues as they pertain to Australian Aboriginal art, see http://www.aboriginalartonline.com/resou…
17
As long as artists are resposible for making up any loss in value due to a lack of interset in their work later, sure why not?
18
Artists are entitled to royalties in Washington state. The sale of original art does not entitle the purchaser to license the image, and this right of license, falls solely on the artist, unless it is transferred to the purchaser or another third party by contract. This is the same in every state in the United States.
Should an artist receive a royalty for a painting they already sold that is being resold? No, never.
Should Ford Motor Company get a royalty when someone sells their Ford Expedition? No, never.
This is the same issue.
The issue is this: Physical product versus Intellectual Property.
Nobody should be allowed to use images of your work for any business venture, non-profit, or for-profit.
But on the issue of royalties for the resale of an already purchased physical product, nobody, except the owner (purchaser) of the product should receive any funds, with the exception being government taxes.
This issue was decided a long time ago. It has been ruled on by the Supreme Court of the United States, and it is established precedent. No state law can change this precedent. Only the United State's Legislature can change this. The law is right, and it is fair, in this case.
Should an artist receive a royalty for a painting they already sold that is being resold? No, never.
Should Ford Motor Company get a royalty when someone sells their Ford Expedition? No, never.
This is the same issue.
The issue is this: Physical product versus Intellectual Property.
Nobody should be allowed to use images of your work for any business venture, non-profit, or for-profit.
But on the issue of royalties for the resale of an already purchased physical product, nobody, except the owner (purchaser) of the product should receive any funds, with the exception being government taxes.
This issue was decided a long time ago. It has been ruled on by the Supreme Court of the United States, and it is established precedent. No state law can change this precedent. Only the United State's Legislature can change this. The law is right, and it is fair, in this case.
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