In light of this, and conforming to the theme of art market selflessness, works sold at Christie’s online selling exhibition “Say It Loud (I’m Black and Proud”) in July/ August last year were subject to strict purchase conditions. To prevent buyers from flipping the works, partner curator Destinee Ross-Sutton’s terms state that 15 percent of all resale process will return to the artist; no auction resales will transpire for three to five years; and artists retain first right of refusal, or if the work is to be sold privately, the artist must receive 15% of the total profits.
However, artists and dealers should be aware that particularly onerous contract clauses – such as those that restrict and even ban buyers from re-selling the work at auction or for a fixed period – legally known as “restrictive covenants” – may violate consumer rights, explains Martin Wilson, Chief General Counsel for Phillips Auctioneers and author of ‘Art Law and the Business of Art‘.
Wilson also points out that the greater the length of the restriction, the greater the detriment to the buyer. For example, the non-resale clause in the Say It Loud contract is binding upon initial purchasers of the work. In contrast, artist Alex Strada’s ‘Artist Contract’ (2017), another iteration of Siegelaub’s 1971 agreement, drafted with the help of art lawyer Sergio Muñoz Sarmiento, mandates that future collectors sell the artwork after ten years upon purchase.
Similar to Destinee Sutton’s ‘Say It Loud’ contract, Strada’s contract also seeks to redirect the flow of capital, stipulating that the proceeds from any future sales be reinvested in an “emerging” artist, albeit those who are “female-identifying”. However, both terms are undefined in the agreement and intentionally left open to interpretation.
Then again, in Close v Sotheby’s [9th Cir. 2018] – the landmark case that resulted in U.S. court decision that the national Copyrights Act pre-empted the federal California resale Royalty Act – the Ninth Circuit Court of Appeals states that resale royalty rights are permitted by private contract. Taking into account Siegelaub’s contract which many of these artist agreements are based on, but which has never been tested in court, art law attorney Susan Schwartz says: “I think the court’s will look at fairness based on a number of factors, including the parties’ relative bargaining power and the extent to which a restrictive covenant reduces the market value of the work to the purchaser. To the extent that these terms are bargained for, and the purchaser was aware of the terms when they purchased the artwork, I believe that the terms will be enforced”.
Schwartz and artist Virginia Broersma are at the forefront of an even newer redraft of the Artist’s Contract. In line with the technological realities of our modern world, the Fair Artists Reserved Equity (FARE) Contract – to be disseminated next month – will incorporate blockchain technology, smart contracts and QR codes in an attempt to further police artworks and enforce contractual relationships. Schwartz draws attention to Amoako Boafo’s “The Lemon Bathing Suit” (2019) – which sold at Phillips for more than 13 times its high estimate, while Boako received no royalties from its abrupt sale – to illustrate that the market maintains its predatory nature towards artists.
In any case, the discussion is timely since the Artist’s Contract is approaching its 50th anniversary. In addition to resale benefits, the contract secured artists rights and controls over their work after its sale, some of which were transposed into the Visual Artists Rights Act (‘VARA’) which passed into US law in 1990 (this too has its limitations, which we explain in a different post).
Another question, however, might consider the overall aim of the contract in determining the definition of ‘success’. Per the New York Times, Mr. Projansky says, ”We never expected this to become the standard of the art world, but we wanted to raise the subject and maybe influence some legislation.”
Muñoz maintains a more binary outlook. “If I buy a hammer from home depot and it breaks, it’s not successful” He tells the REDISTRIBUTION podcast. “There wouldn’t be a need to embellish on whether [it] can be defined as successful or not. So if you ask me whether Strada’s contract or Siegelaub’s contract is successful – I would say the answer is no.”
For a comprehensive repository of artist’s contracts and resources, take a look at our archive.
Editors’ Pick: Models of Integrity – Art and Law in Post-Sixties America (2019)
Written by Joan Kee, Art Historian, Lawyer and Professor, Models of Integrity illustrates how art and the law can collaborate to validate artists’ economic and intangible rights, at a time when the art market is in its early bloom. Chapter 1 focuses on The Artist’s Contract. Purchase the book here.
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