Tag: artist

Categories: Art, Culture, News – Posted on

Suite for the Sweet

Artist Resale Rights in the United States

By MICHAEL MCCULLOUGH          February 19, 2014

Whenever I read about efforts to legislate an “artist resale royalty” in the United States, there comes back into my mind the memory of a conversation I had about ten years ago when the British Parliament was debating the implementation of the EC Directive on artist resale rights.

I was interviewed by an aide to a British MP who was writing a report on the likely effect of the artist resale right upon the British art market. The artist resale right was adopted by the European Parliament in September 2001, and those countries like the UK that did not already have a resale right at that time were required to put one in place in 2006. The Brits were one of the last in Europe to adopt the right; the artist resale right was first introduced to Europe by France in the 1920’s (for auction sales only) – which is why it is often referred to by the French term “droit de suite”.

My interview focused on the competitive disadvantage brought about by the artist resale right to those British auctioneers who competed with auctioneers in the United States for consignments. It was my opinion at the time that the resale royalty put auctioneers in Europe at a competitive disadvantage to auctioneers in countries without the royalty. This is especially true at the high end of the art market where a seller can choose a sale venue in one of several different countries around the globe. I still believe this to be true, but I don’t think the royalty’s effect on the market is so great as to make it punitive; by way of example, the maximum payment under the UK law is €12,500, a miniscule amount in light of today’s nine-figure sale prices. In consequence of this, I don’t believe an artist should be denied the right to share in the financial gains upon the later resale of an artwork. I do, however, believe that-for very different reasons- there will not be an artist resale royalty in the United States anytime soon.

One of the founding principles of American jurisprudence is the idea that private property can never be taken by the government without just compensation. This is the concept of “what’s mine is mine and what’s yours is yours,” and Americans prefer things organize in this clear and tidy manner. In other countries, artwork and other types of personal property can be taken away by the government without any compensation; in other words, “what’s yours is mine.” Americans don’t care much for others coveting their wares; envy and jealousy are fine, but no coveting.

In light of this principle, the artist resale royalty looks very much like a version of “what’s yours is mine.” Most visual artists retain the copyright to their artwork, so they are free to exploit their images commercially should they choose to do so. And an artist can, and many do, create images in series or multiples, so that a single image or concept can be exploited over and over again. Many who favor the artist resale right point to the ability of authors and composers to be remunerated for the reproduction or performance of their work, and the artist resale right is intended to create a parallel benefit. This comparison breaks down very quickly when you realize that in the artist example no additional instance of the original artwork is brought to the market; the correct analogy would be if Salmon Rushdie could claim some further payment for every copy of Midnight’s Children resold in a used bookstore above the $13 price at which it was originally published in 1981. No such right exists today for the author or composer. In fact, what is being proposed in the artist resale royalty is a new right that is not really a royalty at all- it’s more like a profit share- and fits awkwardly with existing concepts of property and ownership. As I said earlier, such a right seems like a good idea at first blush, as most things do, but to justify the right upon the comparison of payments to authors and composers is dubious.

The strongest argument against the resale royalty is also the most fundamental; it simply doesn’t work. The high end of the global contemporary art market is driven by the sale of artworks done by about a thousand artists. The other million-and-a-half artists who worked at some point in the past seventy years are excluded from the revelry. The same is true for the visual artists of the Impressionist and Modern eras. If you don’t believe me then visit any regional auctioneer to view their auctions and you will find that many very good paintings and sculptures can be purchased for under $1000. Most of the artwork created over the past century, when adjusted for inflation, has not appreciated in value at all, so the concept of helping the poor, starving artist is little more than a fiction. The experience in Europe is that the vast majority of artist resale royalties are paid to artists or the families of deceased artists who are financially secure. The fact is that successful artists, just like successful authors or composers, are rewarded commercially; if you compare the art-derived income of creative individuals of equal seriousness and achievement across creative platforms, then you will find that visual artist do very well. Compare Damian Hirst in relation to Cormac McCarthy and Thomas Ades; Marina Abramovic to Joyce Carol Oates or Jennifer Higdon; or pick your own comparison. If you do it fairly, you will find that visual artists usually fare better than their peers who work on royalties.

Creating an artist resale royalty in the United States would also tarnish the attractiveness of art as an investment, thereby decreasing the pool of funds available to purchase artwork. Any legislation aimed at helping struggling artists should address the need for an initial market for their work, as today’s artist struggles for access but manages quite well once the market accepts them. A good way to help artists would be to give collectors incentives to buy more artwork- to abolish the sales tax on purchases of artwork below $5000 or to defer capital gains on artwork that is sold to purchase more artwork. Like it or not, the free market works very well for many artists and the goal should be to keep it that way.

Categories: Art, News – Posted on

Our Greatness and Our Goods

A Letter from Deep in the Heart

By MICHAEL MCCULLOUGH          March 8, 2013

Most budget debates in the US Congress are conducted on an astonishingly low cultural and intellectual level, marked by both parties claiming clairvoyance over what is required to “make the country a better place for our children and grandchildren.” While their concern for posterity is always welcomed, it leaves one wondering how the yet-to-be born where regarded when the deficits were created in the first place. After all, it takes a great deal of time and effort to create monumental budget deficits such as the ones we now maintain. And in a sign of utter incompetence, the Congress and President have now left the budget debate in the hands of the bureaucracy to work out; we’re all anxious to see if they can come up with a more rational method of balancing the Federal checkbook.

So far, being “sequestered” – in the budgetary sense- doesn’t seem so bad, but think how strange it is to see budget cuts that don’t disproportionately affect the National Endowment of the Art. Since the Reagan administration, the NEA has been the whipping boy for federal budget excess, as if the small amounts given to arts funding in the US has any real impact on the budget. Perhaps this is because the government’s role in defining and regulating cultural life in America has always been controversial: Americans, true to their pilgrim roots, detest government interference in most areas of life but especially the cultural and spiritual.

Every now and then, usually while visiting Europe, I realize how late the US was to funding the arts. In the early 20th century, philanthropists were creating great museums and libraries, while the Federal government’s support of the arts was- at best- sporadic, leaving many people in the arts community in despair and disbelief. In 1955, President Eisenhower tried and failed to introduce legislation to establish a Federal Advisory Council of the Art, a modest proposal by any means. President Kennedy revived the effort in 1961 but the bill was defeated in the House 166-173 on a roll-call vote (some things never change). Kennedy tried and failed again in 1963, but Congress passed a bill in 1964 creating an advisory body, the National Council on the Art, in the Executive Office of the President. In consequence of this, President Johnson was the first president in American history to employ a Special Assistant to the President on the Arts, a full-time arts adviser. This led to Johnson’s 1965 State of the Union demand for a foundation on the arts and to Johnson’s submission of a bill to Congress in March of 1965 to establish arts funding. Johnson decided that the bill was a “must” piece of legislation and firmly pressed the Speaker of the House to push the Committee of Rules to move the bill to a vote.

The result was the National Foundation on the Arts and Humanities Act of 1965. Johnson stated at the signing ceremony that the legislation was meant to address the curious fact that “[s]omehow, the scientists always seem to get the penthouse, while the arts and humanities get the basement.” The Arts and Humanities Act established the NEA and provided for 26 citizens to serve as advisers to the agency as members of the National Council on the Arts. Members are appointed by the President and approved by the Senate for six-year, staggered terms. Congress has since reduced the membership of the Council to 18 members of the National Council on the Arts and an additional six members of Congress to serve in an ex officio, non-voting capacity for two-year terms.

It’s difficult to know Johnson’s personal thoughts on the arts, and I’m not well familiar with the various biographies of Johnson. It’s unlikely that Johnson’s early upbringing had a major influence on his understanding of the arts; it’s easy to miss Johnson City, Texas while driving on Highway 289 between Fredericksburg and Austin. It seems more likely that Johnson’s approach to the arts was an intellectual one, and this plays out in many of his speeches and writings on the topic.

The legislative files on the Arts and Humanities Act of 1965 in the LBJ Presidential Library- a collection well worth the visit- offer some useful hints at Johnson’s views on the arts. The Johnson White House wrote dozens of letter to supporters of the legislation, but very few written by Johnson himself- most of the correspondence was delegated to aides. However, in a letter from Johnson to one of the early and keen supporters of the Arts and Humanities Act, Dr. Barnaby Keeney of Brown University, he wrote “[w]e have indeed begun to worry as much about our greatness as about our goods- – and it is a giant step forward.”

This theme of intellectual progress is reflected again in Johnson’s first annual report to Congress on the NEA, delivered in January 1967. The first draft of the address, written by aides, was a dry, bureaucratic checklist of accomplishments. To the final draft, Johnson added “[i]n countless American towns there live thousands of obscure and unknown talents. What this bill does is to bring active support to this great national asset.” He continued on to say, “[t]hose who believe that the quality and appreciation of art is one test of a nation’s maturity and greatness will take heart from this report.”

In another letter, written to the actor Kirk Douglas in thanks for his support of the Arts and Humanities Act, Johnson wrote, “[n]o society is truly great unless the arts are alive. If we can help nourish them, then history will favorably record our times.” As memories of the Vietnam War- and of Arthur Miller- fade, perhaps it’s time to reflect more upon Johnson’s support for the arts and his great legacy of arts funding.