“Droit de suite”
By Lauren Jackson Harris
As an American arts professional, I have seen the sale of art on both small and large scales and worked with artists in various phases of their careers. My first job out of college was in New York with an art advisory firm that managed collections for wealthy clients and collected and sold high end contemporary works from artists such as Damien Hirst and Yayoi Kusama. At 23, working with an art dealer in the commercial art world was very intimidating and after less than two years, I moved to DC and worked for a nonprofit whose motto was to ”Make Space for Art” where we worked with local artists and art organizations to provide vital resources such as office space, gallery space, theatre space and funding. More recently, I’ve worked with emerging artists to provide a platform for them the sell their works through my business, Oak + Moss Home. I also manage ZuCot Gallery in Atlanta, GA which is known for having the largest inventory of African American art in southeast America featuring works by Black living and working artists. Through my years of experience, I’ve gained a sense of respect for artists, their processes, and strive to help where I can in seeing that they are exposed to every opportunity and earn a living as a working artist.
Who are we to keep all the profits on grandiose sales of fine art when we have nothing to do with its creation? Collectors sometimes have the stink of entitlement when it comes to owning art of a certain stature. Auction houses and galleries also profit greatly from the sale and resale of artwork, while artists or artists’ estates receive no form of compensation. As music mogul Swizz Beatz says, “Visual artists are the only members of the creative community in the US that do not receive residual payments for the later sales of their works.”
The phrase “Droit de suite” is the notion that artists, their heirs and estates should receive an Artist Resale Royalty (ARR) percentage between 3-7% whenever one of their works is subsequently resold. Over the years, many supporters of ARRs argue that implementing this system will help working artists by providing income that can be invested into studio spaces, marketing and materials. Makes sense, right? Well, in May of 2017, Jean-Michel Basquiat’s untitled 1982 painting of a skull sold for $110.5 million at Sotheby’s in New York. Setting an auction record for American artists and providing a windfall for the daughter of late collectors Jerry and Emily Spiegel, who purchased it for $19,000 in 1984. Basquiat’s estate did not receive one penny from this sale and doesn’t have any rights to further profits as the new owner plans to take the untitled painting on a tour through various countries and cultural establishments.
The main debate seems to center on how the Artist Resale Royalty would function in the US economy. Over 70 countries have active ARR laws, including Australia, Europe and Russia. Since 2006 in the UK, a form of ARR was implemented amid continuous objections from several commercial based art institutions that feared a loss of sales. Later in reports, it was found that ARR had no negative effect on UK’s art economy. Meanwhile, American artists and leaders have been in a debate that spans over 50 years on whether to actualize ARR.
It seems easy enough for writers, musicians and filmmakers alike to have rights and earn a profit, but visual and fine artists aren’t provided the same decency to retain some type of ownership of their works. Visual artists have the same copyright protections as authors with The Visual Artist Rights Act of 1990 but are not able to profit from the commercialization of their artwork.
Over the last 30 years, a variant of ARR terms have been proposed, such as the Californian Resale Royalty Act ranging in percentages from 3% to 15% in royalties; $1000 to $25,000 as the minimum sale amount; and a cap on the time the art is allowed to be in the system from 5 to 30 years. The factors to be considered are extremely vast and I can only see this coming to fruition if leaders in intellectual property, fine art sales, and the government work alongside artists to develop a feasible scheme. Even the US Copyright Office released a report in 2013 that supported the creation of ARR:
“The Copyright Office finds no significant legal or policy impediments to adoption of a US resale royalty, and indeed supports consideration of 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.”
Ultimately, then, this argument comes down to a matter of greed versus principle. As one who earns her salary promoting and selling the work of others, I stand firmly on the side of the artist, and hope that the fight goes on in order for creatives to be encouraged and motivated despite the stigma of the “starving artist”. Art is an investment for both the artist and the collector. Art should be appreciated and admired. Art is not just the cool thing to do, it’s a lifestyle, and a career that deserves to be recognized on an international level. And as I build my career as an arts professional, I deem it my number one charge to fight against exploitation of the extraordinary talents of our working artists.
Morgan, Tiernan & Purie Lauren. “An Illustrated Guide to Artist Resale Royalties
(aka ‘Droit de Suite’) .” Hyperallergic (2014): Online Newsletter.