Posts Tagged ‘artist rights’

Lawsuits Over Unpaid Artist Royalties

November 1, 2011

Whenever a work of fine art is sold and the seller resides in California or the sale takes place in California, the seller or the seller’s agent shall pay to the artist of such work of fine art or to such artist’s agent 5 percent of the amount of such sale.   (California Civil Code §986(a)).

As the New York Times reported today, as a class action plaintiff, Chuck Close  is suing auctioneers Sotheby’s, Christie’s and eBay in relation to the section of the California Art Resale Royalties Law quoted above. If an art seller resides in California, the obligation to pay the royalty may include sales that occurred outside of the boundaries of California as well, and potentially, some sales of American artwork that may have occurred outside of the country.

According to the report, two related lawsuits for failure to pay royalties to artists seek disclosure of the identities of art sellers–including sellers who live in California– and by extension, seek to identify sellers who did not pay the required 5% royalty to artists on profitable sales.   Knowledge of seller identities is critical for enforcing the law and ensuring that artists’ rights to the royalty payment have not been violated.  The information concealed by the auctions is, as attorney Eric George noted, “the very information necessary to know whether a royalty is due.”

The same article also notes that only a shockingly small sum of art royalties have been paid under the law– a mere $328,000 over 34 years.  Clearly not all who should have paid did so.

See Artuntitled.com for more information about the California Art Resale Royalties Law.

Friction as Artists File Suit Over Resale Royalties” by Patricia Cohen, New York Times, November 1, 2011.

Backhanding Artists’ Rights

September 18, 2011

A for-profit corporation proposes profit increasing legislation under the guise of artists rights:

The Art Newspaper reports that a corporation known primarily for its copyright licensing business is lobbying Congress in support of Federal legislation that would create art resale royalties. Artists have sought a law whereby subsequent sales of a physical artwork would mandate a small royalty fee to the artist of the work.  Generally, such fees are only paid during the lifetime of the artist of the artwork.  However, this is not necessarily the goal or result of the Federal legislation now.   It is apparently proposed  under the guise of artists rights or droit de suite, but in this case, it belies the probable aim of the proposed law– the increase of corporate profits.

The lobbying effort is apparently supported by the Artists Rights Society, which despite its name is not a grassroots or artist-based rights organization.  Rather, Artists Rights Society is a for-profit company whose primary business is copyright licensing.  Artists Rights Society, Inc., (ARS) is listed on the New York Department of State website as a (for profit) business corporation.

Not to confuse the proposed law with, for example, the California resale royalties law, the ARS supported Federal legislation apparently has a drive-a-truck-through-it sized exception for galleries and dealers.  In other words, galleries and dealers would not have to pay the resale royalty to artists.

Although this author strongly supports resale royalties for artists, I particularly oppose the ARS supported legislation because it would be detrimental to most working artists and because it excludes the primary generators of potential royalties– galleries and dealers.  The ARS supported legislation is far too exclusionary and would not benefit any artists whose work is sold by a gallery or dealer.  This would likely subject only auctions and private party hand-to-hand sales to the royalty payment, the later of which are somewhat atypical and often unreported.  The legislation seems designed to primarily benefit ARS and the like, rather than average artists, and seems to be geared in part towards ARS’ side business of artist representation.  In other words, it appears that as ARS (and other such businesses) may be the true recipients of the royalty payments gained from art sales.  It certainly isn’t clear if ARS would pay the revenue to any of the (living) artists that it may represent, but it seems not.  It would be interesting to see the terms of ARS’ representation contracts.

The Art Newspaper says, quoting John Henry Merryman in part:

“The rights collecting associations, the principal lobbying force for enacting the resale right in the US and abroad, would break out the champagne and dance in the streets,” if the resale law was made legal.

Legislation that provides for a Federal resale royalty should be for the interest of the average visual artist, as real support for the progress of the arts, rather than as profit for the exclusive few and corporate business interests.  (See U.S. Constitution, Art. I. § 8 (8)).  Progress in the arts depends upon artists, not licensing companies.  I do not support this legislation and I encourage artists to not settle for a so-called rights law that does not protect or adequately recognize their interests.

Artists, please collect your checks…

March 6, 2009

Many visual artists,  as well as art buyers and sellers, are unaware that a California law requires a 5% payment to the artist of the work upon the resale of artwork.  The statute that requires this payment is based upon a branch of moral rights law that may be referred to as droit de suite.  Similar art resale rights exist in several European countries as well.  

The California law is imperfect, but it is apparently working to some degree.   A recent WSJ article focuses on the state employee, Patty Milich, who’s task it is to track down artists who are owed such payments.  

The list of artists owed payments in California seems fairly small considering the amount of artwork that has probably been (re) sold in the state.  This may indicate that the sellers are doing a good job at tracking down artists and paying them, or alternatively that there is a widespread avoidance or ignorance of the law.  (The seller is suppose to try and locate the artist before using the alternative method of sending the payment to the state Arts Council).  Regardless, it seems like some type of artists registry would be helpful in the administration of this law, but one apparently does not exist–yet.  

The resale rights potentially effect any U.S. artist who’s artwork may be sold in California at some point in time.  Artists must be either U.S. citizens or California residents to qualify for the resale right.  Eligible artworks include those that are resold for more than $1000.  There are certain other restrictions as well, including limitations on the type of art media.

My critique of the law is available on ArtUntitled, along with a text excerpt of the relevant California statute.

California Arts Council’s list of artists who are currently owed payments in California:  www.cac.ca.gov/resaleroyaltyact/resaleroyaltyactlist.php