Contemporary art USA

The case for droit de suite in New York

What’s up with all the secrecy and touchiness about a simple transaction?

The New York press (and this paper) are full of reports that Miami collector Craig Robins has filed an $8m lawsuit against New York’s David Zwirner Gallery for allegedly breaching a confidentiality agreement (see p1). Robins maintains that, despite the agreement, the gallery had divulged to South African artist Marlene Dumas that it had helped Robins sell one of her earlier paintings. The gallery reportedly did so when later courting Dumas to work with them. Dumas allegedly responded by blacklisting Robins from purchasing any additional work of hers through any of her galleries.

To anyone unfamiliar with the way the art world works, this might seem an odd turn of events. Why would anyone want to hide the fact that they sold a work from their collection in the first place? Why would the artist, upon learning about the sale, blacklist the collector? What’s up with all the secrecy and touchiness about a simple transaction? The explanation, as usual, boils down to who gets how much money.

To best illustrate an artist’s take on the flipping of their work, we have the example from 1973, when Robert Rauschenberg notoriously shoved collector Robert C. Scull at an auction at which Scull resold the artist’s work for quite a bit more than he originally paid for it. (A Rauschenberg work that Scull had bought for $900 was resold for $85,000.) Indeed, the perception among many artists has long been that profits of this sort, none of which the artists see, represents the collectors taking advantage of their hard work. Of course, even in 1973, not every artist felt this way. The New York Times recently reported: “When [Jasper] Johns heard about the results, he and his crew took a break from making lithographs to uncork some champagne. He knew, as Scull tried to explain to Rauschenberg, that the high prices would mean higher prices for the works he was making now.” And Roy Lichtenstein reportedly asked: “What did he want, the work to decrease in value?”

Still, the perception persists today that to profit grossly from a living artist’s work is unfair. This might explain why an artist, in anger, would choose to blacklist a collector who had flipped a painting. Mind you, I have no additional information about the Robins-Zwirner lawsuit than anyone could have from reading the newspapers, so rather than inadvertently projecting incorrect motivations upon the players, I’d rather use the basics here as a case example in arguing that such conflicts would be much more avoidable if the New York art industry would support one simple and long overdue bit of legislation: droit de suite, or artist resale rights.

Unlike in London or California, there is no legal obligation in New York to share the profits from the resale of work with a living artist or his or her heirs. This is unfortunate. Not only can it lead to costly, unnecessary lawsuits, but it regularly does lead to a lot of unnecessary secrets—and the resulting animosity when they are not kept. If an artist benefited financially from the resale of their earlier work, there would be no need to keep the details of the sale from them. In fact, the law would require that they be informed. As a result, fewer collectors would fear reprisals from artists learning they had flipped work and, rather than blacklist a collector who resold some piece, artists could also, like Johns, see such sales as a reason to break out the bubbly. Of course, artists might have other reasons to want sold work not to enter the secondary market (such as the timing not being advantageous), but the resentment over extraordinary profits would not be one of them.

In situations such as the one that led to the Robins-Zwirner lawsuit, droit de suite would work well for galleries too. If the law required collectors to share the profits from any resale, the gallery would not get caught between the furtive goals of the collector and the wishes of their artist. Indeed, in most resale arrangements all three parties (collector, gallery and artist) could be motivated to work together to ensure each makes the most money possible.

Despite enthusiastic advocates in some quarters, though, resistance to droit de suite remains strong in New York and throughout the US. Arguments against it range from the notion that it opposes the free alienability of property to the idea that it wrongly equates original, unique works by visual artists with those of authors of reproducible works, or that it’s an unnecessary response to the myth of the starving artist. Perhaps the strongest resistance to droit de suite in New York, though, is the one least likely to be voiced directly to artists: the fear that it would cause collectors to resell work in other jurisdictions. I am hardly going to resolve such differences of opinion with my simple case example, but the system of secrets so susceptible to competing interests that the art market uses in place of droit de suite or similar solutions doesn’t seem to be working out so well either. Unless you’re an attorney, that is.

The writer is the director of the Winkleman Gallery, New York

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3 May 10
17:52 CET


Droit de suite is just one way of splitting the ownership rights to an artwork. Moral rights is another, Maroney's Plan yet another. The best way, though - at least in my opinion as its inventor - is patent-pending Coaccession(tm). Coaccession creates a Cultural Title(tm) with all rights other than possession and a Collector Title(tm) with the right of possession. In my method, the artist retains the Cultural Title, selling only the Collector Title. This lets the artist recall the artwork for active cultural uses - exhibition, research, conservation. When not in active cultural use, the artwork is in the collector's possession. Dividing the rights this way creates financial value, since the collector only gives up the artwork for uses that raise its cultural value and improve its provenance. If the work does increase greatly in value, the artist can then sell the Cultural Title to a museum to collect a part of its financial appreciation. Sharing benefits all parties.

1 May 10
21:40 CET


As an artist I entirely agree with the sentiment expressed by Lichtenstein and applaud the reaction of Johns. However in the realm of reality the practical solution is what Mr. Winkleman has suggested. There will of course be legal issues, and Mr. Winkleman has pointed some out. But given the fact the sale of the work is a commercial transaction, the droit de suite will be just one more piece of legality.

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