Art law USA

American artists must fight for resale rights

Given the art world in its current state, the American visual artist is low man on the totem pole

Call to arms: Frank Stella addressing the delegates at the World Copyright Summit in Brussels

As the temporary president (until 2012) of the International Council of Creators of Graphic, Plastic and Photographic Arts (CIAGP), I attended this year’s World Copyright Summit in Brussels on 7-8 June. Seen from the point of view of a practising artist, it was not an uplifting experience.

For the American visual artist, the work, the image of the work and the artist’s name are protected by copyright. Protected, that is, from gross exploitation. Only adding the right to resale royalties, as has happened in the state of California, gives any legal financial benefit to the artist.

American visual artists need to have a national resale rights convention enacted that would put them in line with other existing artists’ rights societies, particularly those in the European Union. Only then will the artists’ rights societies have enough leverage to function effectively on a global scale for the benefit of all visual artists.

Were this alliance to succeed, what greater protection and benefits would accrue to the artist? Would there be a significant improvement of the artists’ status in the art world and the world at large? Would more creatively inclined people want to become visual artists? I hope so, but there seems to be room for doubt.

Given the art world in its current state, the American visual artist is low man on the totem pole. In the larger, more sophisticated world of intellectual property rights and creative copyright enforcement—in literature, music, film, computer programming and patent protection—the American visual artist is again way behind.

The artists’ depressed position in the copyright world makes an unpleasant image. Massed above the artist in the art world are museums, exhibition halls, educational institutions, auction houses, art dealers, collectors, speculators, forgers and—the most recent menace—art fairs. Why is this community so reluctant to help those on whom they are ultimately dependent? To most of them there is no greater anathema than a resale royalty for artists. For the remainder the royalty is merely a matter of indifference.

How can it be that in more than 20 years only two works of mine were deemed eligible for California resale royalties? Last week, why was I asked by a collector acting for a museum to waive my rights on 32 of my works to be reproduced in a museum catalogue of his collection?

In the end, the only way out for the American visual artist suggested by the World Copyright Summit seems to be found in the lesson of being low man on the totem pole.

The creative professionals above us are obviously better high-stakes players. We need to learn from them.

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Comments

9 Dec 11
19:47 CET

KENT NORTON, SARASOTA

Contracts rule in America. A handshake is no longer in any sense a bond. We must take arms against a sea of trouble, thereby ending them all by employing lawyers to write iron-clad agreements that will protect the artist, unfortunately, the corporation-whether it be for profit or non is ruling the roost in all aspects of American life. Art can no longer be thought of as "free" nor can we tolerate scraps from the Corporate table adequate financial nutrition for creators. Artists must insist on legal/business training as the first course in art schools and build bridges from the right creative brain into the left before the concept is even imagined. Disney was successful due to his brother and a team of talented MBA's and financial wizards. Lets see art as business & everybody makes money and keeps piece of mind as well

6 Dec 11
15:9 CET

CAROLE PIGOTT, SANTA FE, NM.

I would love to see the contract that marcw from chicago does, and agree that if it could be handled this way, it would be quicker with less chance of others making loopholes that benefit them and leave us in the cold again.

6 Sep 11
21:59 CET

BILL HORNE, WELLS, BRITISH COLUMBIA

The low position on a totem pole is actually a place of honour, since that figure is holding up all the others above. US artists might consider organizing to add the Exhibition Right added to yr copyright act, as CARFAC managed to achieve in 1990. Good luck!

23 Aug 11
14:44 CET

ROBERT BURCZY, LATTIMER MINES

I like being low man on the totem pole... nothing wrong with that.

19 Aug 11
14:57 CET

EE JACKS, LOS ANGELES

The truth has been written in this article. Although it is rather depressing, I suppose it is good to know. Ignorance is not bliss in this case it means no dinero to the non-marketing savvy artist. C'est La Vie. Still we strive on. Cup half full :)

17 Aug 11
15:26 CET

MARCW, CHICAGO, IL

Karen: Then obviously the solution is for artists to a) charge a reasonable price for their work that reflects overhead, and b) license their IP instead of assigning (selling) it.

16 Aug 11
15:15 CET

KAREN ZEE, ADELAIDE, AUSTRALIA

I wonder whether the reluctance of dealers and collectors to support a resale royalty has anything to do with their motives for selling/collecting? If one views art largely from an investment angle, then a royalty diminishes returns on investment when the work is sold. But if ones interest lies more with the welfare and long term career prospects of an artist, surely it's in a seller's interst to continue to support that artist through a resale royalty. Art is an expensive business - the artist should not be required to bear the brunt of the 'set up' costs without some expectation of a share in future returns from their IP.

8 Aug 11
15:8 CET

WACURTMSSM, TACOMA, WA

Responce to: MarcW, Chicago,IL. Sir, I would like to work with you concerning the offer of drafting an open creative works "Sales Contract" in an effort to provide such an instrument to the artistic community. I am in agreement with you about returning "value added profits" to an artist, in some form. This licensed form of commitment between the purchaser and originator of "Intellectual Properties" has promise. Would you request communications thru this venue/Art Newspaper.

5 Aug 11
15:4 CET

MARCW, CHICAGO, IL

Mr. Stella: If you want resale rights, why don't you put that provision in your contracts of sale? Why do we need to create an entire new property right when what you want to do is easily achievable using existing law and formulation? I've licensed many creative works under contracts which included sublicensing and resale rights. Any lawyer could do it, any good IP lawyer could do it with their eyes closed. Your organization could draft up some model sales contracts and distribute them gratis. Heck, I volunteer to assist with the drafting pro bono. Anything to avoid yet another bizarre warping of the law to benefit a few savvy millionaires and introduce another right most regular artists won't know about or have the money to protect.

4 Aug 11
18:4 CET

FRANK ETTENBERG, VIENNA

It is significant that Frank Stella wrote this article dealing with the lack of an enforceable resale law on the books. He of all people has the power to militate for a change. In the states no legal undertaking is done gratis and perhaps some better heeled artists like Frank Stella could put their money where their mouths are and undertake some lawsuits, when a copyright infringement is noted and proveable or when resales in the state of California do not collect the appropriate taxes due to the artists. The ones lower on the totem pole than Frank Stella can barely hope to make a dent in the faulty legal structure as long as it remains fundamentally venal ( that is: demanding money to get changes made ).

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