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Finally, a Forum on Resale Royalties Brings Artists into the Conversation

Artists Space curator and W.A.G.E. working group member Richard Birkett introduces “The Artist’s Resale Right” event (photo by the author for Hyperallergic)

Spurred by the reintroduction of the ART Act (American Royalties Too) to Congress, last night Artists Space hosted a public forum on the issue of artist resale royalties (ARRs). Spearheaded by New York Congressman Jerrold Nadler, the ART Act proposes that artists be paid a 5% royalty each time one of their works is sold at auction. The bill would only apply to works sold for over $5,000, with a maximum royalty payment capped at $35,000.

“Even if the 2015 congressional session does not vote on the bill, or if it fails to pass,” the event’s web page states, “the recurrent interest in the issue of resale rights for artists merits greater involvement and consideration of the issue from those who stand to be impacted most — artists.” Entitled “The Artist’s Resale Right,” the forum’s participants included Theodore Feder and Janet Hicks of the Artists Rights Society (ARS), artists Hans Haacke and R.H. Quaytman, art historian Lauren van Haaften-Schick, art dealer Maxwell Graham of the gallery Essex Street, and Barbara Jaffe, an acting Justice of the New York Supreme Court.

The discussion was organized by a working group of the activist organization W.A.G.E. (Working Artists and the Greater Economy). Lauren van Haaften-Schick, a member of the working group and the evening’s moderator, framed the event as an “open discussion” and a “learning process.” W.A.G.E. itself has yet to take a firm stance on the issue of ARRs. “We’re not committed to any kind of advocacy around it at this moment,” Lise Soskolne, W.A.G.E.’s core organizer, told Hyperallergic over the phone after the event.

The proceedings kicked off with a succinct and engaging introduction to ARRs by Feder, the president of ARS. He has been campaigning for US resale royalty legislation since the early 1990s and ARS is lobbying in favor of the ART Act. For Feder, the bill is a pragmatic and necessary first step toward resolving the “glaring inequities” between artists and auction houses. His most pressing point was that resale royalty legislation is typically reciprocal. As long the US has no resale royalty law, US artists will continue to miss out on royalties that they could currently be claiming on works sold in the European Union or in other countries that already have a resale royalty law, including Australia, the Philippines, and Russia. (The EU standardized its legislation on ARRs in 2001).

The-Artist's-Reserved-Rights-and-Transfer-and-Sale-Agreement
The front page of Seth Siegelaub and Robert Projansky’s “The Artist’s Reserved Rights Transfer and Sale Agreement” (1971) (via wageforwork.com) (click to enlarge)

Next up was van Haaften-Schick. The PhD student’s presentation detailed the history of legislative attempts at passing a resale royalty bill, and on the California Resale Royalty Act (1976) — the only ARRs legislation to have been enacted in the US. The latter half of van Haaften-Schick’s presentation largely focused on the legacy and influence of “The Artist’s Reserved Rights Transfer and Sale Agreement” (ARRTSA), a legal contract devised by curator Seth Siegelaub and attorney Robert Projansky. The key component of the contract, which was designed to address the relationship between artists and collectors, stipulates that the artist must receive a 15% royalty on any profit made whenever her or his work is resold. Graham later discussed the legacy of the “Projansky contract” (as it’s referred to by legal experts), tracing its origins to the early concerns and activities of the Art Workers Coalition (of which Hans Haacke was a member). In 2014, Graham organized The Contract, an exhibition in which all the works on sale required the buyer to sign an ARRTSA contract. Van Haaften-Schick proffered the question of whether private contracts such as ARRTSA might be a better solution than the ART Act, since they allow artists to contractually establish their own financial terms with collectors and dealers.

Indeed, ARRTSA is regularly touted as a non-legislative solution to the issue of artist resale royalties. Haacke has been using the contract since the early 1970s and refuses to sell his work to any collectors who reject its terms. On the subject of the ART Act, the artist told the audience that “regulation is something that [he’s] nervous about.” Asked whether collectors had been difficult about signing the contract, Haacke conceded that his years of teaching had enabled him to be “stubborn” with its application, since his employment afforded him financial security. In an interview published by Hyperallergic this morning, Haacke confirmed that he would be pleased if the ART Act came to pass, despite taking issue with the specifics of the bill (namely, that the proposed royalty of 5% is far too low).

The event’s panelists (from left to right): Lauren van Haaften-Schick, Hans Haacke, Maxwell Graham, R.H. Quaytman, Justice Barbara Jaffe, and Theodore Feder (photo by the author for Hyperallergic)

The audience was palpably divided between those who wanted to hear more about the specifics of the ART Act and those who were generally curious about ARRs. A few attendees complained that the evening’s discussion was too broad, a somewhat unreasonable complaint given the event’s billing as an open forum. However, there were indeed moments when the discussion lagged. Quaytman opined that ARRs might actively encourage artists to produce “market-friendly” work (i.e. Zombie Formalism), a remarkably trite concern given that the heart of the debate is whether artists have a right to share in the financial gains that collectors make from their work (short answer: they absolutely should). When van Haaften-Schick began to detail the legal minutiae of various legislative bills, the audience became unsurprisingly restless and inattentive. The complexity of ARRs legislation has undoubtedly been a barrier in what should be a national debate, particularly given the widespread revulsion caused by the art market’s excesses. The packed crowd at Artists Space last night seemed to suggest that the issue is starting to gain real traction.

“I think we definitely achieved a lot in laying the groundwork for future discussions,” van Haafften-Schick told Hyperallergic. “It’s important to stress that the vast majority of previous recent public conversations have been tailored to the legal community, and working artists have simply not been present in these conversations — I think we have broken ground in changing that.”

Justice Jaffe, who described the ART Act as a “huge progressive step,” encouraged artists to peruse the US Copyright Office’s highly readable 2013 report on ARRs. For the W.A.G.E. Artist’s Resale Rights Working Group, last night was just the first of many more discussions to come. Though W.A.G.E itself has yet to formulate an official stance on ARRs, it has successfully responded to the growing concerns of artists. It’s promising that an organization that has made such strides in advocating for artists’ rights is starting to engage with the issue. “It’s absurd and deeply offensive that artists can generate unlimited wealth for speculators but have themselves been barred from fully reaping the benefits of capitalism’s ‘bounty,'” Soskolne told Hyperallergic. “This is not only blatantly unjust, it also reinforces the claim to exceptionality often made by and for artists, and which W.A.G.E. actively campaigns against.”

The Artist’s Resale Right discussion took place on July 22 at Artists Space Books and Talks (55 Walker Street, Tribeca, Manhattan).

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