An Artist Sells a Painting for a Pittance. Years Later, It Auctions for Millions. Should He Get a Cut?

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June 29 2014 11:45 PM

Shouldn’t Artists Benefit When Their Paintings Auction for Millions?

A new bill giving American artists rights their European counterparts enjoy probably won’t pass. It should.

Thaw.
Robert Rauschenberg's Thaw, 1958.

Courtesy of the Robert Rauschenberg Foundation/VAGA

In what would become the first scandalously record-breaking Sotheby’s art auction in 1973, taxi magnate Robert Scull and his wife famously made a fortune on 50 artworks from their collection, which included Robert Rauschenberg’s painting Thaw. There, the artist watched as his piece, which he had initially sold for $900, hammered out for a whopping $85,000. As the story goes, Rauschenberg famously shoved Scull and shouted something along the lines of: “I’ve been working my ass off just for you to make that profit!” (The exact quote varies, but you get the drift.) Rauschenberg didn’t see a dime from that auction; unlike authors and composers, American artists get no cut of their future sales.

This is because U.S. copyright law protects “published” works, and a work of art is not “published,” simply made and sold—so once a work of art is out of an artist’s hands, the future profits, too, are gone. This system is unique to the art world; in other fields, artists are understood to have the right to a share of the proceeds of their works long after the works are first made. It makes perfect sense, for example, that the Isley Brothers would keep making royalties off “Shout,” even though it wasn’t a chart-topper when they released it in 1959 (it didn’t become iconic until it was featured in Animal House in 1978), or that Joan Didion would keep collecting money off Slouching Towards Bethlehem, which was published when she was 34, before her legend was secure. In the music world, a minor scandal arose when Chuck Berry was cheated out of part of his royalty rights for “Maybellene.” In the art world, everybody is Chuck Berry.

As for Rauschenberg, he funneled his outrage on the warpath for artist resale royalties, and eventually paved the way for the 1977 California Resale Royalty Act—the first artist royalties provision in U.S. history. For a brief time, that law gave some American artists a taste of royalties, until it was struck down in 2012. Meanwhile, artist resale royalties (or droit de suite) have long been a basic right in 70 other countries; France has had such a system since 1920, and the European Union standardized it across the continent in 2001. They’re so common that the U.S. Copyright Office specifically revised its position on artists’ royalties last year, recommending that Congress revisit the issue.

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Now, Congress has that chance: the recently proposed American Royalties Too (A.R.T.) Act, a bill which would give artists a 5 percent cut of the profits when their works are resold at auction. The bill has its flaws: It applies only to auctions and not private dealings. But 5 percent is also a slim and fair share, compared with the auction houses’ 12to 25 percent buyers’ premiums—though even 5 percent looks too fat to slip under the door. An earlier version of the bill, the Equity for Visual Artists Act, failed to attract a single co-sponsor in 2011, and over the past few years, Christie’s and Sotheby’s have been raining upward of $1 million on lobbying against royalties. At this writing, govtrack.us gives the A.R.T. Act a 2 percent prospect of being enacted.

Given the surge of multimillion-dollar auction records boasted by Christie’s and Sotheby’s on an almost monthly basis, how do the auction houses justify lobbying against a bill that might pay artists for their works? When Art F City asked a Christie’s spokeswoman, she insinuated that successful artists simply don’t need more money: “European studies have shown that resale royalty schemes provide support to less than 5% of working artists, and the artists receiving royalties tend to be those commanding the highest prices on the primary market.”

Sure, for most artists, large secondary markets are a best case scenario. But only a multibillion-dollar-a-year industry would force us to re-examine a kindergartener’s understanding of ethics. Whether artists are successful or unsuccessful, making millions or pennies, they deserve to share in the money their work generates. “The A.R.T. Act won't benefit every artist, unfortunately, but this is not an anti-poverty program,” Rep. Jerrold Nadler (D-N.Y.), sponsor of the failed 2011 Equity for Visual Artists Act, told me over the phone. “This is a fairness and equity program. Just because we can't bring in everybody doesn't mean we should bring in nobody.”

And in the art world, even “success” can be deceptive; artists who periodically sell well at auction don’t necessarily make a cozy living. “Nobody escapes falling on hard times,” artist Marilyn Minter told me. “I think all artists have a really hard time at the beginning, middle, or end of their careers; it’s up and down like a yo-yo, and some people have it twice.” For most, even the “yo-yo” career remains aspirational. “Personally, the A.R.T. Act would not translate into any kind of immediate windfall for me,” the artist William Powhida told me. “I've only had one small work come up at auction, which sold for under $3,000. I am hopeful, though, that in 10–15 years that might be a different story for my work, but that is almost besides the point.”

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