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Saturday, May 19, 2007

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.

15 Comments:

Blogger MHV said...

There is always one detail about the sale of prints for mega-bucks that nag me. When Cindy Sherman or Andreas Gursky sell a print for millions of dollars, are they actually selling the work, including reproduction rights, or are they selling only the physical object that is the print, with provisions to the right of exhibition etc. ?

If the former, then even if Cindy Sherman kept a copy, it doesn't matter. If the latter, you would have to wonder how many 2.1 million dollar prints of the same photo the market can sustain. Value depends a little upon rarity, so if you can find a pristine copy of Untitled 92 in every trashcan of New York, even though it's a great work by an important artist, you will have problems justifying the price to the market, right?

3:23 PM  
Blogger Mike Johnston said...

"There is always one detail about the sale of prints for mega-bucks that nag me. When Cindy Sherman or Andreas Gursky sell a print for millions of dollars, are they actually selling the work, including reproduction rights, or are they selling only the physical object that is the print, with provisions to the right of exhibition etc. ?"

The latter.

--Mike

3:25 PM  
Blogger Mike Johnston said...

P.S. The market gets around the problem of anti-rarity by valuing "vintage prints" far more than later prints. Thus, only a Cindy Sherman that she printed and sold in 1981 would be assigned the highest value. Later prints, even those made by the artist herself from the original negative, are worth much less.

David Vestal rails against this practice as essentially stupid, noting that he makes better quality prints from his old negatives now than he did when the negatives were new.

I know of no way to quantify the differences in worth between "vintage" and "modern" prints, but when Walter Rosenblum was exposed for selling new prints from Paul Strand negatives as vintage prints, the difference in value for those was about 10X. That is, a valid price for a modern print made by Rosenblum from the original Strand negative was $2k, and by passing them off as vintage Strand-made prints (not hard to do, since Walter and his wife were two of the world's foremost experts on Strand, often called upon to autheticate vintage Strands!), the value was increased to $20k. That was a few years ago now.

It would be interesting to know if Cindy Sherman is still selling prints of "Untitled No. 92" and, if so, for how much.

--Mike

3:32 PM  
Blogger Dan said...

"Droit de Suite" mentality is is plain ridiculous (I'm being kind. I could add arrogant and greedy but...).

If we are going to start giving artists a cut of re-sales, then people should reasonably expect to give athletes a cut of any baseball card of them or singed ball that's latter sold at an increased value as well.

Or, how about paying the movie studios and record companies for each used movie/CD sale made? They'd love that and do continue to fight for it despite the fact it would put the used media market out of business (record stores are having a hard-enough time staying open as it is) which wouldn't do consumers a lick of good.

No, there is good reason why First Sale Doctrine exists. To protect the right of the consumer, which by the way we depend upon for our sales.

If we as artists start acting arrogant about re-sales, we will do nothing more than push our customers away to those photographers who are willing to sell themselves short. Such as the micro-stock chumps.

No industry works like "Droit de Suite." Why should we think we are any more special? That we somehow deserve to earn money beyond the efforts we have put into our work?

4:14 PM  
Blogger MHV said...

"The market gets around the problem of anti-rarity by valuing "vintage prints" far more than later prints. Thus, only a Cindy Sherman that she printed and sold in 1981 would be assigned the highest value. Later prints, even those made by the artist herself from the original negative, are worth much less. "

Thanks for your answer, Mike. I think it shows an ever bigger problem with the current model of print sales. I can understand the vintage print sales model easily: these prints are essentially sold on the basis of acquired value and rarity, also as historical artifacts.

When Andreas Gursky sells a recent inkjet print for 1+ million, the "vintage" veneer drops off. I wouldn't be surprised if there is an expense of, say, 100,00$ in the making of the print (they are BIG after all! and that requires a lot of talent to pull off). But the valuation becomes more an exercise in speculation.

I don't want to spit in the soup of Gurksy, after all if people are willing to buy his prints at that price, he deserves these customers.

I guess it's just that if I was spending millions on a print, regardless of its age, I'd like perhaps to own a little more than just the paper it's printed on?

4:25 PM  
Blogger Sam said...

The reason why we have copyright laws is to encourage development of the art in return for a limited monopoly on the art.

Droit de Suite concept encourages laziness on the part of the artist. As making more art would decline the value of her past works. It gives her an incentive to manipulate her present works as to leverage the values out there.

As a society we should try to make more work available to the public not encourage work to remain in the hands of the few who collect.

2:58 AM  
Blogger rwerp said...

The artists could secure their interests more by selling their works on such terms:

1) when the buyer re-sells the work, 10% of the profit goes to the artist
2) the buyer can only re-sell the work to people who accept the same deal.

This would be totally acceptable, although I don't think anyone tried such things with photos.

Of course, any such string attached will lower the market value of the work *when sold by the artist*. That's life. "Droit de Suite" would have a similar impact, as the market would simply take into account the future tax to be paid and adjusted the price accordingly. Which may be even a bigger problem for the artists.

I, personally, think that free market is one of the best systems for settling such things. We correct the market when it cannot solve difficult problems on its own, such as health care for the poor (or, more to the point, for everyone who is not a millionaire), common education, environmental care, preservation of culture. Most good artists seem to live quite well, selling their work on the market. I don't think that there is a real need to interfere in how the art market works.

3:59 AM  
Blogger Thomas D. said...

It's easy to feel sympathy for the artist and see the righteous side to Droit de Suite.

So, how does Droit de Suite work if the artwork depreciates in value?

4:20 AM  
Blogger catbird said...

Those who will be hurt by a Droit de Suite are the young beginning artists. The famous can take care of themselves, but a Droit de Suite will mean that people will pay less for the young, unknown, possibly one day famous artists works since they will have to share any potential price increases with the artist. Since life is difficult enough for beginning (it is not an accident that they are frequently referred to as "starving") artists, why would one want to make it worse?

6:40 AM  
Blogger Hank Graber said...

Artists do get some measure of ongoing rights. Even if you pay millions for a print you can not sell reproductions of it as that would violate the artists copyright.

The absurd prices being paid for a whole range of assets including art will not last. All bubbles end the same way. Take comfort in the fact the the artist will not have to share in the loss that will be suffered by the greater fools who bought at the top.

7:18 AM  
Blogger Hank Graber said...

I would add one more point. All though Cindy Sherman does not get a cut of resales she certainly benefits indirectly from the price increase as it has a direct impact on what she can sell new prints for.

7:21 AM  
Blogger Greg Heins said...

A correction: the sad Walter Rosenblum scandal concerned Lewis Hine photographs, not Paul Strand. Strand was known for making notoriously few prints, each intensively labored over, whereas Hine, whose photography was in the service of a different endeavor, made many and "print quality" was not a concern. In fact, the high quality of the Rosenblum prints was one of the factors that evoked suspicion, as I understand it.

7:31 AM  
Blogger Luc said...

The point we are missing, most of the time when talking about the art market (yes it is a market, and art objects are a commodity in a capitalistic system), is that buyers are investors. I am not talking about the buyer looking at a painting to put above the new sofa. I am talking about high priced art. Photography became a recognized art when investors realized the potential offered by the medium, hence making it a potential source of profit. This is how motion picture became an art, attaining this status more rapidly because of the economics involved. My point is that when people talk about art, they often are not talking about the same thing. Mike underscores that in his comments when pointing at the added value of vintage prints. This is typical of capitalism: rarity of a commodity inflates the price. So when an artist invokes a 'droit de suite', he places himself in a capitalistic dynamic, recognizing de facto that the piece he/she created is a commodity. Hence he should abid by the rules and logic of the system; he sold his/her creation at the maximum price the market could bear at the time of the sale, under stress or not is irrelevant, and should accept that the re-seller plays by the same rules.
And by the way, if a 'droit de suite' is recognized as valid, it should go both ways. If a buyer re-sell a piece he bought with a loss (which happens frequently) should he ask for a partial refund from the artist, primarly responsible for not sustaining the market value of what he creates?
Luc Novovitch

7:34 AM  
Blogger Mike Johnston said...

Greg,
You're right, it was Lewis Hine. Sorry.

--Mike

8:39 AM  
Blogger tim atherton said...

The reason why we have copyright laws is to encourage development of the art in return for a limited monopoly on the art.

actually, that not the reason copyright was developed - it just happens to be a side effect of it.

Also, people are talking as if DdS is theoretical. It;s now in place across the whole EU as far as I recall

8:32 PM  

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