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Joyce Owens: Do Collectors Owe Profits to Artists?

From the archives of when Chicago Art Magazine’s Founder and Publisher Kathryn Born was at the helm of the Chicago Now blog. This post was originally published on June 20th, 2009.

Joyce Owens

Before you get started with this, let me clarify that I am talking about artists who are still selling work at moderate prices through art galleries. The artists whose work can be resold without them even knowing. And not the Kerry James Marshall type artists. He recently sold a painting through his gallery, Jack Shainman, at the Miami Basel art fair for $350,000.00.  I am not speaking of him or the other art giants that we read about.

I am speaking to most artists who sell their work in the hundreds, maybe up to 10 or 20  thousands of dollars. The auction house artists, such as Mr. Marshall,  are another story. I hope we all get there!

So, you think your work is in a great collection and you even have the name of the collector on your bio. This person donates art works to the Art Institute and has a great reputation for collecting the masters!

But a year or two later the collector is incapacitated because of a stroke and his wife has a sale of his collection at a local gallery. You have NOT been notified. You find out because you run into someone who tells you how thrilled they are to have acquired your work from the prominent collection!

Really?

So here is another way that living artists get the screw. Some people, especially artists, think the creator of the original art work or the vendor (gallery) who sold it should be notified when the work is de-acquisitioned. And secondly, that the artist should receive a percentage of the resale price, especially if it sells for higher than the original price. Artists should also know if their work is going at higher prices. The Europeans have laws to protect their artists. And you may think California is flaky on some issues but they have laws to protect artists when their work is resold, too.The artists should also be given the option of buying back their work before it goes to someone else. (article continues).

Here is an excerpt from a 1995 article:  If art is resold, should the artist profit?

by Edmund H. Mantell

I INTRODUCTION

The title of this essay is taken from the headline of a recent news article appearing in The New York Times.(2) The article described public hearings held in San Francisco. The hearings were conducted by the office of the Policy Planning Advisor for the United States Register of Copyrights, as part of a study on the feasibility of federal legislation to establish mandatory resale royalties applying to works of fine art. The person holding the position of the federal Policy Planning Advisor is reported to have said that the San Francisco hearings carry particular weight because the participants were the people “actually involved” with resale royalties. The pending federal legislation is modeled on a California statute.(3) The California statute was originally enacted in 1976, and was amended in 1982. Subject to certain qualifications,(4) it requires the seller of a work of “fine art” (or his agent) to pay to the artist 5 percent of the amount of the sale price. Important to the functioning of this law is that it specifies that the right of the artist to receive the royalty cannot be waived by the artist unless by a written contract providing for a royalty in excess of 5 percent of the amount of the sale. The evident purpose of the California statute, and its pending federal equivalent, is to increase the income that artists derive from their creations.(5) Struggling artists, so it is argued, should be treated with special solicitude by legislators. The special solicitude should be manifested in a practical way. In view of the propensity of legislative bodies to shun talk of taxing the electorate to provide subsidies to artists…

I think many collectors buy art because they love it and would get a second job before selling off their collections.  But if you find you need to sell, please give the artist the right of first refusal. And give them a 5% cut of your profits which they have earned already by producing the work.

I hope providing a little insight I will encourage all art buyers be sensitive to the artist whose life’s work is in their hands. For legal help check with the Lawyers for the Creative Arts.

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