In 1971, the brain-child of conceptual art dealer Seth Siegelaub and New York lawyer Robert Projansky revolutionized art purchase transactions. Set against the backdrop of a turbulent 1960’s that mirrors continued inequities today – think: the civil rights movement, women artist’s committees, art worker’s rights – The Artist’s Reserved Rights Transfer and Sale Agreement, also known as ARRTSA; the Siegelaub-Projanksy Agreement; or simply The Artist’s Contract, was designed to strengthen the economic and authorial rights artists had over the sale of their works.
By no means however, as multiple art historians and lawyers comment, is the contract a ‘silver bullet’. Despite availability as a free public resource, Joan Kee, historian and author of Models of Integrity, draws attention to criticisms that it was only used by artists who have a certain amount of institutional clout. The document itself has also been resisted by collectors and considered a relic among artists, with the notable exception of Hans Haacke.
Some of its most controversial provisions stipulate, for example, that the Artist’s Contract should be legally binding upon future owners of the artwork and that the artist should receive 15% of the work’s appreciated value each time it is transferred – known as a resale royalty. Artist’s were also advised to affix – superglue or otherwise – the notice of agreement on the artwork. Conceptual artist Haacke’s use of the contract saw his work “On Social Grease” (1975) set a new auction house record at Christie’s and enrich him by $10,000 following the work’s resale.
Arguably the most controversial term of the contract was Article Seven, which provides an exhibition veto right for artists – devised as a stop gap measure when museums failed to inform artists of their legal rights. But would this provision prevail in court? In 1974, art lawyers Franklin Feldman and Stephen E. Weil disagreed. What would happen in the particular case of museums, who are known to exhibit works freely and depend on this liberty they said? Or, the lawyers argued further, in the event that inheritors do not consent to the contract’s terms – will a beneficiary still have to honor the contract obligations?
Siegelaub’s contract was – and still is – indicative of the changing attitudes toward art and the role of artists over time.
Just three years before ARRTSA was released to the public, an artist named Takis led a protest alongside The Artist’s Worker Coalition to remove his 1960 sculpture, ‘Tele-Machine’, from an exhibition he never agreed to held at the MOMA. It was also the first time the idea of artistic labour has been argued so viciously in legal circles that were, at that time, well away from the art world.
In an interview, French conceptual artist Buren critiques the Artist’s Contract for placing too much importance on the exchange of art as a bargaining chip for financial profit, highlighting specifically its 15% resale royalty clause. Instead, Buren’s own artist’s contract, Avertissement (1968-72) is distinguished by the fact that only the purchaser – and not Buren – signs the contract. Avertissement tries to protect Buren’s body of works from “incredible forms of manipulation” by enabling him to have a say in its public or private exhibition, reproduction and chain of ownership.
This is significant as it explores the notions of authorship through a shift in power from the purchaser to the artist. In effect, if the buyer defaults on any of the terms of the agreement – which prohibits photography, reproduction and public exhibition of the work or warning; legally binds subsequent transferees; and requires notice upon transfer – Buren will disclaim attribution to the work as his own, reducing its value to nought.
Even so, Buren’s strict requirements hasn’t deterred buyers. Last July, his ‘To Cut Out: Situated Works’ 1969 – 2009 sold for £30,000 at Phillip’s London New Now auction, accompanied by none other than a notice of the work’s 2009 Avertissement.
In recent times however, the Covid-19 crisis and the resurgence of social justice movements have encouraged altruism in a money-centric art market, from which charitable artist agreements have emerged. In collaboration with attorney Laurence Eisenstein, KADIST – the non-profit contemporary arts organisation – revised the ARRTSA agreement to allow the 15% resale royalty to benefit a charitable organisation of the artist’s choice.
Although wealth redistribution models are far from novel in the art market – think: artist Cady Noland who in 1992 assigned 15% of profits to Partnership for the Homeless for two works – the focus here is to promote and implement equitable practices.
The model enables artists to indirectly support an established non-profit or even sustain their own foundations, provided they work hard to develop their careers so the works appreciate over time. Collectors also benefit from a tax write-off from donating the 15% royalty to an IRS 501(C )(3) non-profit, hence forming a symbiotic relationship with the artist and vice versa. Yet, compared to the original Artist’s Contract KADIST’s version is lacking in some fundamental ways. For one, it doesn’t include provisions relating to exhibition, reproduction, copyright, restoration, or any other event that might affect the artwork once it leaves the artist’s hands. It would be prudent for parties to consider discussing these points and consult a lawyer to draft any additional clauses. Buren may have criticised Siegelaub’s resale clause as borderline avaricious, but it’s safe to say that KADIST’s contract probably isn’t what he had in mind either.
Another practical consideration to take into account, as pointed out by Executive Director of Centre for Art Law Louise Carron, is that KADISTS’s model agreement expects emerging artists to find art collectors willing to bet on their careers, and would only be effective if the artwork is sold multiple times – thereby relying on “art flippers” for the Agreement to take its full effect. The reality is however, that many artists — and representative dealers trying to deter quick-profit-investors for these artists — prefer collectors to keep the work for a substantial amount of time while the market for the artist rises.
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