Culture,  Op-Ed

Op-Ed: Artist Contracts Are Gaining Traction (Again). But Could The Art World Be Doing More?

Californian artist Virginia Broersma calls for artists to leverage 21st century advancements in technology – as well as the newly created FARE contract – to achieve certain rights following the resale of their works.

The romanticized notion of the starving artist who only is concerned with making their work, and doesn’t worry their ethereal head about contracts or invoices, has placed artists in an unfortunate position that perseveres even now into 2021.

I left art school with a vague notion that if my work was good enough, the rest would fall into place. 15 years later into my professional career, I would come to realize that I also left without knowledge of how to run a business, sell works, write a budget, market works or recognize the legal and ethical implications of a contract, much less draft one.

It isn’t impossible to make a living as an artist. It is that art students are – generally speaking – only taught how to make art. And while other foundational skills are not an end in and of themselves; they are the necessary and important components of a pragmatic transition into the ‘real world’.

Californian artist and co-director of the FARE Contract project Virginia Broersma

This reality has seen a surge in artists pursuing a professional career over the last decade, alongside the government’s failure to match this growth in terms of financing, patrons and opportunities for sustainable livelihoods as a working artist. Consider the inadequacy of national funding : the reported annual budget for the National Endowment for the Arts this year is $167.5M, which pales in comparison to New York’s budget on cultural affairs alone and was even threatened with elimination during the Trump Presidency, despite a global health crisis and art market in financial turmoil.

Artists – particularly the unfledged and unwitting – are left to rely on the protective wing of the gallery model for their best chance at income, growth and stability. But at what cost? While the gallery acts as a support system, for example purchasing the artists works at auction or handling mundane yet requisite duties like filing tax returns, this is in exchange for a strict monopoly in the artist’s works and control over even simple administrative tasks the artist is incapable of, resulting in their disempowerment.

This position artists are placed in – one of dependence and precarity – varies from relationship to relationship, but more often than not excludes the use of written agreements among parties involved in transactions. The majority of artists I know do not ask for a contract when they sell, consign or exhibit their work, for reasons that centre around being seen as “difficult”. The art world and buyers of art in particular have benefitted from this lapse in knowledge, which undermines our leverage in negotiations, and subsequent fear – of losing out on sales, relationships, or opportunities – even if unintentionally.

In my personal experiences, a lack of written agreement has led to galleries offering discounts for my work that I did not approve and making sales without disclosing who purchased the work and for how much. Yet, this is nothing compared to artists who watch the prices of their works skyrocket and do not see any profit – all for lack of a contract which entitles the artist to such.

Cue the sorely contested argument to remedy the starving American artist: writers, composers and actors collect royalties – why not us?

In every form of creative endeavor, with the exception of painting and sculpture, there are potential residual profits which the creator never loses. This right – namely, the French-coined droit de suite or ‘resale royalty’ – is afforded to artists as a means to protect their economic position. In Europe, such royalties are payable for up to 70 years after the artist’s death.

The U.S. congress have struggled with the idea of this resale royalty right, yo-yo’ing between its consideration – which would amend the Copyright Act – or rejection. In California, the Resale Royalty Act which at last granted artists 5% of the increased value of their works upon resale was struck down in a 2018 decision. Notably, the Ninth Circuit opined that federal copyright law permits artists to enforce resale royalties by contract.

This question has been given new impetus following the soaring secondary market sales of living artists’ works, and the increase in “flipping” that results in exponential profits the artist will never see, on account of a widely-accepted system that refuses to benefit or protect the ones who make the art world possible.

It is surprising that the concept is viewed, generally, as radical in the U.S., with staunch opponents claiming it would dilute US copyright laws and open floodgates to, for example, architects or jewelry designers to benefit from the same right. Yet, droite de suite has been advocated for in Europe as far back as the 19th century, working in harmony with copyright laws and its subjects.

It is also a trite narrative that only successful artists are able to use agreements containing resale clauses, as we have seen with the recent Ross-Sutton contract that entitled emerging black artists to 15% of every secondary sale at Christie’s ‘Say It Loud (I’m Black and Proud)’ auction last year.

That contract derives from the principles that underpin curator Seth Siegelaub’s 1971 Artist’s Resale Rights and Transfer Sales Agreement (“The Artist’s Contract”). In particular, Siegelaub’s contract provides that artists should be compensated at the time of the re-sale or transfer of their work if it has appreciated in value and to be able to control the public exhibition of the work following its transfer.

Excerpt taken from “An Open Letter to Artists” flyer written by Seth Siegelaub, distributed by the Art Workers’
Coalition, 1969

Fifty years later however, the U.S. continues to lag behind in protecting the economic and authorial rights of artists when selling their works, while collectors, galleries and auction houses reap the fruits of their labor in the current art market.

The visual arts sector too have yet to organize and create protections and best practices for the security of the artists who face these struggles. This leaves many artists – including myself – still feeling like they are trying to find a way up a ladder without rungs. Until successful legislation is in place, the use of private agreements remains a feasible alternative to establish a resale royalty and other important terms to the artist.

Artists must start to demand better practices – and implement them through using contracts – to establish a more fair and professional industry.

Enter: The FARE Contract. The Fair Artists’ Reserved Equity Contract was borne out of conversations between myself and artist-attorney Susan Schwartz, on how artists could retain a percentage of ownership in their work when it is sold – based on Professor Amy Whitaker’s insights – and how they should continue to benefit from this retention, among other rights.

Susan’s vocal advocacy during her regular workshops on artists contracts also opened my eyes to not only the practical reasons that written agreements should be used in professional transactions, but equally to the fundamental reason that artists should value their work enough to protect it. Now, our collaborative efforts have materialized in the FARE contract – an artist-centric sale and transfer agreement that is free and accessible to any (not just visual) artist.

As Susan writes, it is time for an updated Artist’s Contract, and, in contrast to its predecessor, the FARE contract is one variation that spells out methods of notice and enforcement using new technologies. The advent of blockchain registries, smart contracts, QR codes and websites have made it possible for artists to notify buyers of a work’s terms of sale, track sales of their works in the secondary market, control authentication of their works, sell fractional interests and retain resale royalties. These avenues also minimize the excuses a collector might claim concerning treatment of the artwork – especially in light of the transparency social media brings to an otherwise clandestine art industry.

Modern advancements reflect that the timing is right to establish better practices that can be upheld with the aid of technology and contemporary culture shifts. The more artists and art workers ask for protection of their rights as they identify them, the greater chance of artists contracts becoming normalized in the industry. The earlier artists take the initiative to educate themselves using tools and resources freely available to them, the faster such grassroots efforts can turn into widely-adopted practices.

It is an ambitious goal, but if its success is based on the availability of artists who feel disempowered within the art world, it is a project that might actually have some legs.

Find out more about The Artists Contract Project here. Create your own agreement using the FARE contract model here. View our archive for further resources on the 1971 Siegelaub-Projanksy Agreement.

Words by Virginia Broersma and Rinnah Anosike.