Unfair in the End

Paul Butzi, over on Musings on Photography, recently had a couple of interesting postings about Droit de Suite (a French terms that translates as "Right of Continuation" or continuing rights). The first posting is from May 3rd, and the followup appeared on May 7th. As Paul explains,

The basic idea of Droit de Suite is that an artist should get a share of any increase in value that occurs after the sale of an artwork.

Sometimes, someone buys an artwork, and then later sells it for a higher price than they bought it. Without Droit de Suite, the profit of the sale goes to the person who bought the work and subsequently sold it. If an artist sells an artwork for, say, $500, and then the buyer eventually sells it for, say, $50,000, the buyer nets a profit of $49,500, and the artist’s share of this profit is...zero.

Proponents of Droit de Suite say that’s not fair. The artist did all the work, the buyer did nothing but hold the work for a while, and yet the artist gets nothing but the original $500 and the buyer gets $49,500. Not fair, not fair!

So what Droit de Suite does is this: whenever an artwork is sold, the original artist gets a cut of the sale price (for example, in France, between 1% and 3% of the sale price goes to the artist).

Paul's very scornful of this, taking a "narrow" or strict free-market capitalist perspective on it, as if an artwork were identical to any other sort of commodity. That doesn't work for me, entirely, for a variety of reasons; for instance, the artist may have been under duress or in distress when she originally sold the art, or the initial buyer may have been duplicitous or dishonest. But that's quibbling, really. The main problem with Paul's capitalistic critique is that the artwork increases in value not entirely because of what it is, but because of who the artist is, what her significance is, the publicity she engaged in, the awards she won, and everything else she accomplished and achieved in the meantime. In other words, Cindy Sherman herself has added to the value of her 1981 photograph since 1981, even though she hasn't had possession of it. Art isn't strictly a commodity, with just material commodity value and no other kind of existence. (Artists themselves "comment" on this fact all the time, for instance when Andy Warhol signed blank sheets of paper and sold them for $5,000 each.)

I would argue, however, that photographers can sidestep the entire issue altogether by investing in their own work. That is, Cindy Sherman may have sold "Untitled No. 92" for two thousand dollars in 1981 (I don't know the actual original price, so don't quote that), and now it's worth $2.1 million, but nothing stopped her from making an extra two or three copies and keeping them for herself. Had she done so, she could now presumably sell one of her own copies of the work and realize her own profits.

So every time you make a print, make a couple extra, and stow them away. If you end up famous, it'll be your retirement account.

Of course, nothing can really compensate artists for the value they add to their work by, um, dying. But hey, as the free marketeers are so fond of pointing out, life is never fair in the end.

Posted by: MIKE JOHNSTON, with thanks to Mike

Featured Comment by Paul Butzi: "My thoughts in response to this in this new post on my blog."

Featured Comment by Tim Atherton: "...People are talking as if Droit de Suite is theoretical. It's now in place across the whole EU as far as I recall."

Featured Comment by Robert: Anyone interested in reading more about 'Droit de Suite' in practice should go and have a browse through the DESIGN AND ARTISTS COPYRIGHT SOCIETY website which can be found here—www.dacs.org.uk. If you look in their royalties report or the annual review on the 'about' page, you will find some interesting facts about how this works in practice, and how it has worked. For example, the minimum threshold was lowered from EURO 3000 to EURO 1000, and this has led to a 60% increase in claims, which would indicate that it is not just the massively succesful who might benefit form this.

"'Artist's Resale Right,' as it is known in UK, became law in Feb. 2006, following an EC directive. Sherman's entitlement for "Untitled No. 92" would have been capped at EURO 12,500, about $17,000 at today's rates. That is 0.008% of the auction price. It also only applies to 'Art Market Professionals' thus excluding Museums and private collectors—though it does apply to galleries or dealers or auction houses.

"You will also see that they do a lot of simple copyright work for artists too—over 60% of which benefited photographers in the last report."

Featured Comment by Tim Atherton: Good take on Droite de Suite here.