California Resale Royalty Act Struck Down... pending appeal
May 21, 2012 9:17 AM Subscribe
California Resale Royalty Act declared unconstitutional. The only Droit De Suite Law in the U.S. is now defunct. It was signed into being by Gov. Jerry Brown in 1976..... previously
Judge Jacqueline H. Nguyen of U.S. District Court, Central District of California struck down the California Resale Royalty Act last week because it violated the U.S. Constitution's Interstate Commerce Clause.
Even though artists all over the country qualify for resale royalties, only about 400 painters and sculptors have received a total of $328,000 in resale royalties since the Resale Royalties Act took effect....
....The curious thing is that it took 35 years for the Resale Royalties Act to be struck down as unconstitutional. As Nguyen recounts in her ruling, California's legislative counsel wrote an opinion letter way back in the 1970s, when the state was drafting the law, noting that if California attempted to extend resale royalties to sales outside of the state, the act would be invalid under the Commerce Clause.
Background on the case here, here, and here..
Judge Jacqueline H. Nguyen of U.S. District Court, Central District of California struck down the California Resale Royalty Act last week because it violated the U.S. Constitution's Interstate Commerce Clause.
Even though artists all over the country qualify for resale royalties, only about 400 painters and sculptors have received a total of $328,000 in resale royalties since the Resale Royalties Act took effect....
....The curious thing is that it took 35 years for the Resale Royalties Act to be struck down as unconstitutional. As Nguyen recounts in her ruling, California's legislative counsel wrote an opinion letter way back in the 1970s, when the state was drafting the law, noting that if California attempted to extend resale royalties to sales outside of the state, the act would be invalid under the Commerce Clause.
Background on the case here, here, and here..
Doesn't seem fair, does it?
To demand payment for work you were already paid for? No, it doesn't.
posted by ChurchHatesTucker at 10:16 AM on May 21, 2012 [6 favorites]
To demand payment for work you were already paid for? No, it doesn't.
posted by ChurchHatesTucker at 10:16 AM on May 21, 2012 [6 favorites]
Good news. Why should a protected class of artists get any money for work they already sold just because somebody else made more reselling it?
posted by MartinWisse at 10:19 AM on May 21, 2012 [1 favorite]
posted by MartinWisse at 10:19 AM on May 21, 2012 [1 favorite]
The commerce clause argument is easy to follow and I can't disagree with the fairness considerations either. Artist and buyer agree on a price and both should know at that time that it factors in resale opportunity. If a buyer knows that opportunity will be worth less - and that fees/commissions on the sale will likely be higher to account for the bureaucracy involved with compliance of droit de suite laws - overall purchases will be lower and all but the best artists will suffer as a result.
And we already have a means to ensure that artists can profit from their work: they retain the copyright to works that are sold, so they (and their heirs) can make money from licensing prints, t-shirts, postcards, books, etc.
And what happens if a painting loses value over time? A good number of buyers who bought works in 2007 won't likely see a profit on their purchase for a long long time; to take a percentage from them on a losing resale hardly seems fair.
posted by AgentRocket at 10:23 AM on May 21, 2012
And we already have a means to ensure that artists can profit from their work: they retain the copyright to works that are sold, so they (and their heirs) can make money from licensing prints, t-shirts, postcards, books, etc.
And what happens if a painting loses value over time? A good number of buyers who bought works in 2007 won't likely see a profit on their purchase for a long long time; to take a percentage from them on a losing resale hardly seems fair.
posted by AgentRocket at 10:23 AM on May 21, 2012
California shot itself in the foot because it chose not to limit the CARRA to sales in California. The choice was based on greed in a way, as the State was afraid that no one would sell work in the State of CA.
As regards artists resale rights, it is a thorny issue. If someone writes one book that is great, they are assured royalties for ever... if an artist makes one body of work that is considered great (usually when they are young) and the work sells for the usual peanuts that unknown artists earn.. that artist can be in poverty 20 years down the road while the 20 or so works made in his or her first years are worth $100 million.
posted by snaparapans at 10:45 AM on May 21, 2012 [1 favorite]
As regards artists resale rights, it is a thorny issue. If someone writes one book that is great, they are assured royalties for ever... if an artist makes one body of work that is considered great (usually when they are young) and the work sells for the usual peanuts that unknown artists earn.. that artist can be in poverty 20 years down the road while the 20 or so works made in his or her first years are worth $100 million.
posted by snaparapans at 10:45 AM on May 21, 2012 [1 favorite]
Is it usual for a wildly market-successful visual artist to create such a limited number of works, though? Aren't $100 million sales prices usually based on the artist's overall reputation and body of work rather than the perceived quality of a single piece?
posted by mr_roboto at 10:51 AM on May 21, 2012
posted by mr_roboto at 10:51 AM on May 21, 2012
Damn! I had works created and sold in California that were eligible for CRRA royalties, I looked forward to receiving them someday.
The way I read this decision, it applies to transactions in interstate commerce, but the law would still be in effect for sales within California. IMHO striking down this provision also has effects on interstate commerce, it will drive resales out of California. This creates unequal protection from the law.
The CRAA is worded a little differently than the articles and legal pleadings would seem to indicate. Eligibility of artworks is somewhat restricted. We really need a nationwide droit de suite law. International droit de suite laws already exist, which impact US sales.
Why should a protected class of artists get any money for work they already sold just because somebody else made more reselling it?
They're not a protected class, they're an exploited class. Artists typically sell works during their early careers that rise in price due to the artist's future works and his future reputation. Buyers purchase physical artworks with an element of speculation that they will rise in price. Certainly this is true of works resold, which are not kept for sentimental reasons and thus capital gains are would not be realized on resale. Works resold at a profit depend on the value of works created by the artist after the work that was purchased.
Example: Back in the 1980s when I lived in LA, if a friend liked one of my watercolors and I wanted to give it as a gift, I would sell it to them for $1, in order to make it CRRA eligible. I never developed much of a reputation to drive prices of my work, but a 30 year old watercolor could easily sell for $1000, in which case my friend would make a profit of $949 and owe me $50. But now I'm about to do an MFA, which will certainly be an investment of probably $50k and 4 years of my life, with a significant chance that it will increase my public profile and cause the value of my (rare) prior works to increase. I have only a very small amount of my past work stored in my own collection, so even if the value of those works rises dramatically, I will not realize much profit from selling them. If I'm going to work my ass off to increase my own value as an artist, and consequently the value of my works that you own, isn't it fairly reasonable that you should owe me $50 per thousand when you sell one of my old works?
I'll also note
posted by charlie don't surf at 10:58 AM on May 21, 2012 [1 favorite]
The way I read this decision, it applies to transactions in interstate commerce, but the law would still be in effect for sales within California. IMHO striking down this provision also has effects on interstate commerce, it will drive resales out of California. This creates unequal protection from the law.
The CRAA is worded a little differently than the articles and legal pleadings would seem to indicate. Eligibility of artworks is somewhat restricted. We really need a nationwide droit de suite law. International droit de suite laws already exist, which impact US sales.
Why should a protected class of artists get any money for work they already sold just because somebody else made more reselling it?
They're not a protected class, they're an exploited class. Artists typically sell works during their early careers that rise in price due to the artist's future works and his future reputation. Buyers purchase physical artworks with an element of speculation that they will rise in price. Certainly this is true of works resold, which are not kept for sentimental reasons and thus capital gains are would not be realized on resale. Works resold at a profit depend on the value of works created by the artist after the work that was purchased.
Example: Back in the 1980s when I lived in LA, if a friend liked one of my watercolors and I wanted to give it as a gift, I would sell it to them for $1, in order to make it CRRA eligible. I never developed much of a reputation to drive prices of my work, but a 30 year old watercolor could easily sell for $1000, in which case my friend would make a profit of $949 and owe me $50. But now I'm about to do an MFA, which will certainly be an investment of probably $50k and 4 years of my life, with a significant chance that it will increase my public profile and cause the value of my (rare) prior works to increase. I have only a very small amount of my past work stored in my own collection, so even if the value of those works rises dramatically, I will not realize much profit from selling them. If I'm going to work my ass off to increase my own value as an artist, and consequently the value of my works that you own, isn't it fairly reasonable that you should owe me $50 per thousand when you sell one of my old works?
I'll also note
posted by charlie don't surf at 10:58 AM on May 21, 2012 [1 favorite]
From the "Suite" link:
When [Jasper] Johns heard about [an auction sale of his earlier work] 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?
posted by ChurchHatesTucker at 11:01 AM on May 21, 2012
When [Jasper] Johns heard about [an auction sale of his earlier work] 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?
posted by ChurchHatesTucker at 11:01 AM on May 21, 2012
Is it usual for a wildly market-successful visual artist to create such a limited number of works, though? Aren't $100 million sales prices usually based on the artist's overall reputation and body of work rather than the perceived quality of a single piece?
That's not the intent of the law. It was originally conceived as a way to compensate artists for extremely old works that were sold for almost nothing when they were young, "emerging" artists, but the works appreciated in value dramatically when the artist did make it big.
posted by charlie don't surf at 11:01 AM on May 21, 2012 [1 favorite]
That's not the intent of the law. It was originally conceived as a way to compensate artists for extremely old works that were sold for almost nothing when they were young, "emerging" artists, but the works appreciated in value dramatically when the artist did make it big.
posted by charlie don't surf at 11:01 AM on May 21, 2012 [1 favorite]
IMHO striking down this provision also has effects on interstate commerce, it will drive resales out of California. This creates unequal protection from the law.
Yes, but California doesn't have, and never has had, the authority to regulate commerce occurring wholly outside California. The fact that an artwork was created in California gives California no authority over it once it leaves.
posted by one more dead town's last parade at 11:03 AM on May 21, 2012
Yes, but California doesn't have, and never has had, the authority to regulate commerce occurring wholly outside California. The fact that an artwork was created in California gives California no authority over it once it leaves.
posted by one more dead town's last parade at 11:03 AM on May 21, 2012
IMHO striking down this provision also has effects on interstate commerce, it will drive resales out of California. This creates unequal protection from the law.
There's no Constitutional protection against a state making itself unfriendly to commerce. If California doesn't like the consequences then they should repeal the law.
posted by sbutler at 11:07 AM on May 21, 2012 [3 favorites]
There's no Constitutional protection against a state making itself unfriendly to commerce. If California doesn't like the consequences then they should repeal the law.
posted by sbutler at 11:07 AM on May 21, 2012 [3 favorites]
The fact that an artwork was created in California gives California no authority over it once it leaves.
That's not strictly true. California law does extend to interstate commerce. For example, let's say my painting is sold in a Los Angeles gallery, under a sales contract that has a rider allowing me to retain reproduction rights and that I have the right to temporarily reclaim possession of the work 1 year out of 7 for gallery or museum retrospective exhibits. Such contractual obligations entered into under California law, would be enforceable outside California. These contract riders are common, and in fact, recommended in sample contracts given by the California Arts Council, which originally advocated for the CRRA.
posted by charlie don't surf at 11:08 AM on May 21, 2012 [1 favorite]
That's not strictly true. California law does extend to interstate commerce. For example, let's say my painting is sold in a Los Angeles gallery, under a sales contract that has a rider allowing me to retain reproduction rights and that I have the right to temporarily reclaim possession of the work 1 year out of 7 for gallery or museum retrospective exhibits. Such contractual obligations entered into under California law, would be enforceable outside California. These contract riders are common, and in fact, recommended in sample contracts given by the California Arts Council, which originally advocated for the CRRA.
posted by charlie don't surf at 11:08 AM on May 21, 2012 [1 favorite]
mr_robotoIs it usual for a wildly market-successful visual artist to create such a limited number of works, though? Aren't $100 million sales prices usually based on the artist's overall reputation and body of work rather than the perceived quality of a single piece?
Vermeer made only 34 paintings...
Some say that most artist best work is when they are young, which is when it sells for a song.
But you are right that $100Mil sales would be a rare case.. Had Basquiat lived past 27..
The original French Law was created because the family of Millet was living in poverty after WWI, and a painting of Millet's sold for big bucks.
All in all 5% is a pittance compared to the 25% auction houses take, or the 50% dealers take. I do have mixed feelings about Artist Royalty Rights though, as it usually only comes into play for artists who are quite successful... but then again who doesn't need more money?
posted by snaparapans at 11:10 AM on May 21, 2012
Vermeer made only 34 paintings...
Some say that most artist best work is when they are young, which is when it sells for a song.
But you are right that $100Mil sales would be a rare case.. Had Basquiat lived past 27..
The original French Law was created because the family of Millet was living in poverty after WWI, and a painting of Millet's sold for big bucks.
All in all 5% is a pittance compared to the 25% auction houses take, or the 50% dealers take. I do have mixed feelings about Artist Royalty Rights though, as it usually only comes into play for artists who are quite successful... but then again who doesn't need more money?
posted by snaparapans at 11:10 AM on May 21, 2012
These contract riders are common
Yes, but note that there is a contract. Parties can agree to operate under California law even if neither is resident in California. California cannot pass a law saying that artists have the right to temporarily reclaim possession of their works in the manner you describe above and expect it to be enforceable if the artwork is moved outside the state without such a contract already in place.
posted by one more dead town's last parade at 11:13 AM on May 21, 2012 [1 favorite]
Yes, but note that there is a contract. Parties can agree to operate under California law even if neither is resident in California. California cannot pass a law saying that artists have the right to temporarily reclaim possession of their works in the manner you describe above and expect it to be enforceable if the artwork is moved outside the state without such a contract already in place.
posted by one more dead town's last parade at 11:13 AM on May 21, 2012 [1 favorite]
...if a friend liked one of my watercolors and I wanted to give it as a gift, I would sell it to them for $1, in order to make it CRRA eligible...
Classy.
...a 30 year old watercolor could easily sell for $1000, in which case my friend would make a profit of $949 and owe me $50.
Flip it around. Your customers are supporting you by purchasing your work. Why shouldn't that entitle them to a percentage of your future profits?
posted by ChurchHatesTucker at 11:14 AM on May 21, 2012 [1 favorite]
Classy.
...a 30 year old watercolor could easily sell for $1000, in which case my friend would make a profit of $949 and owe me $50.
Flip it around. Your customers are supporting you by purchasing your work. Why shouldn't that entitle them to a percentage of your future profits?
posted by ChurchHatesTucker at 11:14 AM on May 21, 2012 [1 favorite]
charlie don't surf
The way I read this decision, it applies to transactions in interstate commerce, but the law would still be in effect for sales within California.
No, I believe that the entire law was struck down. California would have to draft a new law only applying to California art sales to put it back on the books.
posted by snaparapans at 11:16 AM on May 21, 2012
The way I read this decision, it applies to transactions in interstate commerce, but the law would still be in effect for sales within California.
No, I believe that the entire law was struck down. California would have to draft a new law only applying to California art sales to put it back on the books.
posted by snaparapans at 11:16 AM on May 21, 2012
Charlie, I was curious to see what sort of terms the California Arts Council recommends in their sample contract, but I couldn't find any indication that they provide a sample contract. Do you have a link to one of their sample contracts?
posted by RichardP at 11:31 AM on May 21, 2012
posted by RichardP at 11:31 AM on May 21, 2012
Classy.
An amateur gives away his work, a professional sells them. I am a professional artist. I assure you my friends understood, and many of them were fascinated with droit de suite laws when I explained them. I considered it consumer education, and I was also active in the California Arts Council promoting artist's rights.
Besides, one of the guys who paid $1 for my "gift" owned a Monet he later sold at auction for $5 million. Do you think he cares about fifty bucks when his ex-wife claimed half the $5M in a divorce? Hey come to think of it, he already owes me more than fifty bucks for other debts, dammit.
posted by charlie don't surf at 11:31 AM on May 21, 2012
An amateur gives away his work, a professional sells them. I am a professional artist. I assure you my friends understood, and many of them were fascinated with droit de suite laws when I explained them. I considered it consumer education, and I was also active in the California Arts Council promoting artist's rights.
Besides, one of the guys who paid $1 for my "gift" owned a Monet he later sold at auction for $5 million. Do you think he cares about fifty bucks when his ex-wife claimed half the $5M in a divorce? Hey come to think of it, he already owes me more than fifty bucks for other debts, dammit.
posted by charlie don't surf at 11:31 AM on May 21, 2012
RichardP, I have a folder full of old CAC sample contracts filed somewhere, but I can't find them online either. I got these through the mail in pre-Internet times. You might be able to find them through California Lawyers for the Arts, California Arts Advocates, or the LA County Arts Commission. I am searching now but nothing has turned up yet. If I knew which of 40 boxes I had my old contracts in, I'd just scan them for you.
posted by charlie don't surf at 11:39 AM on May 21, 2012
posted by charlie don't surf at 11:39 AM on May 21, 2012
Thanks for checking for me. However, if the CAC sample contract isn't readily accessible to you, please don't go to any additional effort just to satisfy my curiosity.
posted by RichardP at 11:49 AM on May 21, 2012
posted by RichardP at 11:49 AM on May 21, 2012
Is there any form of endeavor where the creator gets a portion of a resale?
Actors can get residuals from a movie or TV show, but that's when the product is exhibited, not when one studio sells its film library to another. A writer might be able to sell a story to multiple venues, but in each case the writer is the original source. So it's not a resale in the sense we're talking about here. How about an architectural design? If I sell my house, nobody who helped create it gets a dime.
posted by Longtime Listener at 12:19 PM on May 21, 2012
Actors can get residuals from a movie or TV show, but that's when the product is exhibited, not when one studio sells its film library to another. A writer might be able to sell a story to multiple venues, but in each case the writer is the original source. So it's not a resale in the sense we're talking about here. How about an architectural design? If I sell my house, nobody who helped create it gets a dime.
posted by Longtime Listener at 12:19 PM on May 21, 2012
Longtime Listener: If I sell my house, nobody who helped create it gets a dime.
Art not fungible like other commodities. Perhaps the difference between Visual Art.
Actors can get residuals from a movie or TV show, but that's when the product is exhibited, not when one studio sells its film library to another. A writer might be able to sell a story to multiple venues, but in each case the writer is the original source.
Perhaps the best way to think of Visual Art v the examples you bring up, is that Visual Art exists in space not time. It is the object itself that has value, not its ability to generate time base experiences.
Even an artist video, which exists in time still retains its market value as an object in space; what is inside the cassette has relatively negligible monetary value compared to its thingness.
posted by snaparapans at 12:38 PM on May 21, 2012
Art not fungible like other commodities. Perhaps the difference between Visual Art.
Actors can get residuals from a movie or TV show, but that's when the product is exhibited, not when one studio sells its film library to another. A writer might be able to sell a story to multiple venues, but in each case the writer is the original source.
Perhaps the best way to think of Visual Art v the examples you bring up, is that Visual Art exists in space not time. It is the object itself that has value, not its ability to generate time base experiences.
Even an artist video, which exists in time still retains its market value as an object in space; what is inside the cassette has relatively negligible monetary value compared to its thingness.
posted by snaparapans at 12:38 PM on May 21, 2012
if there is true artist appreciation in the market, why not get reputable auction groups, museums, etc. to voluntarily include an artist royalty in their transactions? if it's voluntary, they could set the terms (payments directly to living artists and not necessarily to heirs, for instance). perhaps it could become standard such that organizations that don't do it would be viewed poorly for begrudging the artist a cut when everyone else is making money along the way.
posted by fallacy of the beard at 12:43 PM on May 21, 2012 [1 favorite]
posted by fallacy of the beard at 12:43 PM on May 21, 2012 [1 favorite]
Well, snaparapans, that's why I brought up architecture. Great architecture exists in space. It has value as an object in addition to its utility as a house or office or auditorium. Should Frank Gehry get a percentage when someone sells a building he designed? How about any of the people who helped Gehry create the design?
posted by Longtime Listener at 12:59 PM on May 21, 2012
posted by Longtime Listener at 12:59 PM on May 21, 2012
fallacy of the beard: ....why not get reputable auction groups, museums, etc. to voluntarily include an artist royalty in their transactions?
That is part of why the case came into being.. Artists were suing the "reputable" Auction Houses for royalties.. they cried foul and challenged the CARRA. From their POV, it would add unreasonable burden to their ability to do business.. doesn't seem to be hurting them one bit in London, despite complaints. It does seem as more contemporary art price records are taking place in the US (NYC) where there is no Droite De Suite law. But I think that is splitting hairs.
posted by snaparapans at 1:11 PM on May 21, 2012
That is part of why the case came into being.. Artists were suing the "reputable" Auction Houses for royalties.. they cried foul and challenged the CARRA. From their POV, it would add unreasonable burden to their ability to do business.. doesn't seem to be hurting them one bit in London, despite complaints. It does seem as more contemporary art price records are taking place in the US (NYC) where there is no Droite De Suite law. But I think that is splitting hairs.
posted by snaparapans at 1:11 PM on May 21, 2012
Longtime Listener ...that's why I brought up architecture..
Well, I guess other objects have monetary value as objects.. but I would argue that architecture, no matter how beautiful, visually challenging it is, distinguishes itself from visual art in that it is primarily utile and ultimately falls in the category of design, a poor sister to Art.
Gerhey does make art though.. and furniture. He won the fine arts architectural competition ar UCON.... but that is for designing their Fine Arts School Building..
posted by snaparapans at 1:26 PM on May 21, 2012
Well, I guess other objects have monetary value as objects.. but I would argue that architecture, no matter how beautiful, visually challenging it is, distinguishes itself from visual art in that it is primarily utile and ultimately falls in the category of design, a poor sister to Art.
Gerhey does make art though.. and furniture. He won the fine arts architectural competition ar UCON.... but that is for designing their Fine Arts School Building..
posted by snaparapans at 1:26 PM on May 21, 2012
Art [is] not fungible like other commodities.
Having not read the law I'm unaware, but does the law actually go about classifying art as um... well... art? With guidelines as to what is, and what is not covered under the law?
Avoiding the "I'll know it when I see it" aspect of things, could something like Facebook or Google not be covered under said artistic license, where resellers of shares would then have to pay a portion of their proceeds to the original creator?
Ultimately, I'm with notyou when he said there was a fundamental flaw in this business model. Any laws designed to fill the cracks will have enough loopholes to make it essentially useless.
posted by Blue_Villain at 1:32 PM on May 21, 2012
Having not read the law I'm unaware, but does the law actually go about classifying art as um... well... art? With guidelines as to what is, and what is not covered under the law?
Avoiding the "I'll know it when I see it" aspect of things, could something like Facebook or Google not be covered under said artistic license, where resellers of shares would then have to pay a portion of their proceeds to the original creator?
Ultimately, I'm with notyou when he said there was a fundamental flaw in this business model. Any laws designed to fill the cracks will have enough loopholes to make it essentially useless.
posted by Blue_Villain at 1:32 PM on May 21, 2012
" If I'm going to work my ass off to increase my own value as an artist, and consequently the value of my works that you own, isn't it fairly reasonable that you should owe me $50 per thousand when you sell one of my old works?"
Not really. It sounds like naked self-interest seeking to have the doctrine of first sale undermined with no thought to legal consistency or consequences outside of that naked self interest.
posted by klangklangston at 1:49 PM on May 21, 2012 [3 favorites]
Not really. It sounds like naked self-interest seeking to have the doctrine of first sale undermined with no thought to legal consistency or consequences outside of that naked self interest.
posted by klangklangston at 1:49 PM on May 21, 2012 [3 favorites]
Blue_Villain does the law actually go about classifying art as um... well... art?
um.. I think that the classification of Art goes something like this: something made as Art by an Artist. Nothing anywhere near as complex as deciding as to whether you believe something should be classified as art or not.
Regarding circumstances in which the CARRA would have applied (From the website):
The artist at the time of the sale is a United States citizen or has been a California resident for at least two years.
The seller resides in California or the sale takes place in California.
The work is an original painting, drawing, sculpture or original work of art in glass.
The work is sold by the seller for more money than she or he paid.
The work is sold for a gross price of more than $1,000 or is exchanged for one or more works of art or for a combination of cash, other property, and one or more works of fine art with a fair market value of more than $1,000.
The work is sold during the artist's lifetime or within 20 years of the artist's death.
The CARRA website is written in plain simple language and explains how the law works (or used to work).
posted by snaparapans at 1:53 PM on May 21, 2012
um.. I think that the classification of Art goes something like this: something made as Art by an Artist. Nothing anywhere near as complex as deciding as to whether you believe something should be classified as art or not.
Regarding circumstances in which the CARRA would have applied (From the website):
The artist at the time of the sale is a United States citizen or has been a California resident for at least two years.
The seller resides in California or the sale takes place in California.
The work is an original painting, drawing, sculpture or original work of art in glass.
The work is sold by the seller for more money than she or he paid.
The work is sold for a gross price of more than $1,000 or is exchanged for one or more works of art or for a combination of cash, other property, and one or more works of fine art with a fair market value of more than $1,000.
The work is sold during the artist's lifetime or within 20 years of the artist's death.
The CARRA website is written in plain simple language and explains how the law works (or used to work).
posted by snaparapans at 1:53 PM on May 21, 2012
This suit makes it clear that the whole skein of copyright law is really the domain of the very successful artists and corporations who want to maximize their incomes. Most artists don't have to worry too much about their stuff being resold by Christie's. And, seriously? They want a cut when it's resold? This is the playground of the already wealthy.
posted by Mental Wimp at 2:26 PM on May 21, 2012
posted by Mental Wimp at 2:26 PM on May 21, 2012
Mental Wimp: And, seriously? They want a cut when it's resold?
Well why shouldn't they want a cut? Does being successful make you all of a sudden a person who feels good about people making lots of money off your work?
Also, your fantasy about all the artists who's work is up for auction at Sotheby's or Christie's being on easy street is just that: a fantasy. Besides, Art is a business, and there is no reason that the artists have to play deaf dumb blind and stupid. Given all that, droite de suite in the US is never going to happen.... if anything, Congesscritters share your disdain for successful artists (unsuccessful ones too) and if anything they will figure out how to pass a law that penalizes artists every time a work is sold or created, or even conceived.. lol
I have mixed feelings about artist's resale royalties, still... but if I had to pay an extra 5% on a sale, that went to an artist's resale royalty, I would feel good about it.
posted by snaparapans at 2:59 PM on May 21, 2012
Well why shouldn't they want a cut? Does being successful make you all of a sudden a person who feels good about people making lots of money off your work?
Also, your fantasy about all the artists who's work is up for auction at Sotheby's or Christie's being on easy street is just that: a fantasy. Besides, Art is a business, and there is no reason that the artists have to play deaf dumb blind and stupid. Given all that, droite de suite in the US is never going to happen.... if anything, Congesscritters share your disdain for successful artists (unsuccessful ones too) and if anything they will figure out how to pass a law that penalizes artists every time a work is sold or created, or even conceived.. lol
I have mixed feelings about artist's resale royalties, still... but if I had to pay an extra 5% on a sale, that went to an artist's resale royalty, I would feel good about it.
posted by snaparapans at 2:59 PM on May 21, 2012
charlie don't surf writes "If I'm going to work my ass off to increase my own value as an artist, and consequently the value of my works that you own, isn't it fairly reasonable that you should owe me $50 per thousand when you sell one of my old works?"
No. Even if one posits it is shouldn't that also obligate the artist to pay back a percentage of the original purchase price when a work declines in value.
Longtime Listener writes "How about an architectural design? If I sell my house, nobody who helped create it gets a dime."
snaparapans writes "Art not fungible like other commodities. Perhaps the difference between Visual Art. "
Architecture is certainly art; when you divorce buildings from art you get monstrosities like Soviet housing blocks. Even trade work involved in a building can be art; we have discussions on how an electrical installation *looks* all the time (IE: daily) when discussing otherwise equally valid options. And we'll routinely spend more money to make installations look good even when they are hidden from view.
posted by Mitheral at 3:10 PM on May 21, 2012 [2 favorites]
No. Even if one posits it is shouldn't that also obligate the artist to pay back a percentage of the original purchase price when a work declines in value.
Longtime Listener writes "How about an architectural design? If I sell my house, nobody who helped create it gets a dime."
snaparapans writes "Art not fungible like other commodities. Perhaps the difference between Visual Art. "
Architecture is certainly art; when you divorce buildings from art you get monstrosities like Soviet housing blocks. Even trade work involved in a building can be art; we have discussions on how an electrical installation *looks* all the time (IE: daily) when discussing otherwise equally valid options. And we'll routinely spend more money to make installations look good even when they are hidden from view.
posted by Mitheral at 3:10 PM on May 21, 2012 [2 favorites]
Well why shouldn't they want a cut?
Hell, I want lots of things I'm not entitled to. But I think you're asking why don't they deserve a cut. The answer is that they already sold the work and unless that sale involves some agreement about resale, they shouldn't have any claim to it. Yes, I feel bad for the young artist who sells a painting to a collector for $200 and it later is auctioned for $2M, but how is that different from selling a company for $50,000 that later is sold for $500M?
posted by Mental Wimp at 3:15 PM on May 21, 2012
Hell, I want lots of things I'm not entitled to. But I think you're asking why don't they deserve a cut. The answer is that they already sold the work and unless that sale involves some agreement about resale, they shouldn't have any claim to it. Yes, I feel bad for the young artist who sells a painting to a collector for $200 and it later is auctioned for $2M, but how is that different from selling a company for $50,000 that later is sold for $500M?
posted by Mental Wimp at 3:15 PM on May 21, 2012
OK Mitheral, I can see that you appreciate great and even good architecture, but not sure what that has to do with the business of visual art. If you want to redefine, for the marketplace, the way art and architecture is classified, bought and sold, fine. Easier to accept that there are distinctions between the field of visual art and the field of architecture for the sake of this discussion. Generally speaking good architecture is considered well designed, and at best genius, but still in the category of design. And yes there are many artisans and even artist's involved who's day job is mixing cement or laying in electrical cable.
Hey there are bad artists too... and, I guess art is in the eye of the beholder because I have a soft spot for soviet housing blocks... to bad that they were constructed so poorly... as the good ones are costing a fortune to restore..
posted by snaparapans at 3:26 PM on May 21, 2012
Hey there are bad artists too... and, I guess art is in the eye of the beholder because I have a soft spot for soviet housing blocks... to bad that they were constructed so poorly... as the good ones are costing a fortune to restore..
posted by snaparapans at 3:26 PM on May 21, 2012
Mental Wimp But I think you're asking why don't they deserve a cut.
I guess it boils down to opinion. My position is that if I sold a work on the secondary market I would not mind paying 5% of the sales price to the artist who made the work if it was law. In fact I would feel good about it.
As far the example of a company that cost $50,000 and I sold for $500M, I do not remotely see how it is analogous.
For me art is special, companies not so much, but in America, art is pretty much seen by most as interchangeable with tv, so I can see why you came up with the example about business.
There is a droit de suite law in europe, but many there also think that art, is on par with spirituality and important for the soul, business, well something on a lower level culture wise.
posted by snaparapans at 3:40 PM on May 21, 2012
I guess it boils down to opinion. My position is that if I sold a work on the secondary market I would not mind paying 5% of the sales price to the artist who made the work if it was law. In fact I would feel good about it.
As far the example of a company that cost $50,000 and I sold for $500M, I do not remotely see how it is analogous.
For me art is special, companies not so much, but in America, art is pretty much seen by most as interchangeable with tv, so I can see why you came up with the example about business.
There is a droit de suite law in europe, but many there also think that art, is on par with spirituality and important for the soul, business, well something on a lower level culture wise.
posted by snaparapans at 3:40 PM on May 21, 2012
There is a droit de suite law in europe, but many there also think that art, is on par with spirituality and important for the soul, business, well something on a lower level culture wise
Yeah, well, we got religion for that. Here, you sell stuff? We call it commerce.
I think the important lesson here for young artists is: don't sell your art for anything less than it's really worth. Demand your millions up front, otherwise you're leaving money on the table.
posted by ChurchHatesTucker at 3:48 PM on May 21, 2012
Yeah, well, we got religion for that. Here, you sell stuff? We call it commerce.
I think the important lesson here for young artists is: don't sell your art for anything less than it's really worth. Demand your millions up front, otherwise you're leaving money on the table.
posted by ChurchHatesTucker at 3:48 PM on May 21, 2012
I think the important lesson here for young artists is: don't sell your art for anything less than it's really worth. Demand your millions up front, otherwise you're leaving money on the table.
The message to young artists should be: "You won't get your millions up front, but you will get millions worth of exposure (if you're good)." That is the implicit deal with buying art from young artists. We take a chance that they might amount to something, and they get exposure.
In this sense they're just like everyone else. Almost no one enters an industry and makes the big bucks right away. It's about growing and promoting yourself to reach that level. What young artists aren't getting monetarily is made up for in what they should be getting reputation wise.
posted by sbutler at 3:55 PM on May 21, 2012
The message to young artists should be: "You won't get your millions up front, but you will get millions worth of exposure (if you're good)." That is the implicit deal with buying art from young artists. We take a chance that they might amount to something, and they get exposure.
In this sense they're just like everyone else. Almost no one enters an industry and makes the big bucks right away. It's about growing and promoting yourself to reach that level. What young artists aren't getting monetarily is made up for in what they should be getting reputation wise.
posted by sbutler at 3:55 PM on May 21, 2012
Having not read the law I'm unaware, but does the law actually go about classifying art as um... well... art? With guidelines as to what is, and what is not covered under the law?
Yes. SCOTUS ruled on this issue in Brancusi v. United States. Edward Steichen bought Brancusi's famous sculpture Bird in Space and imported it to the US. US Customs refused to recognize it as art and exempt from taxation. Steichen refused to pay and sued. The case hinged on the point, is Bird in Space objectively categorized as Art, or should it be categorized as "Machined metal implements, Kitchen utensils, and hospital supplies."
The decision ruled that if an object was manufactured with the intention of being art, under the direction of a person recognized as an artist by other artists, that means it's art.
There is other case law about this, but it all comes down to this SCOTUS case.
posted by charlie don't surf at 4:58 PM on May 21, 2012 [2 favorites]
Yes. SCOTUS ruled on this issue in Brancusi v. United States. Edward Steichen bought Brancusi's famous sculpture Bird in Space and imported it to the US. US Customs refused to recognize it as art and exempt from taxation. Steichen refused to pay and sued. The case hinged on the point, is Bird in Space objectively categorized as Art, or should it be categorized as "Machined metal implements, Kitchen utensils, and hospital supplies."
The decision ruled that if an object was manufactured with the intention of being art, under the direction of a person recognized as an artist by other artists, that means it's art.
There is other case law about this, but it all comes down to this SCOTUS case.
posted by charlie don't surf at 4:58 PM on May 21, 2012 [2 favorites]
The decision ruled that if an object was manufactured with the intention of being art, under the direction of a person recognized as an artist by other artists, that means it's art.
That seems to kick the can down the road. Who gets to define 'artists?'
posted by ChurchHatesTucker at 7:12 PM on May 21, 2012
That seems to kick the can down the road. Who gets to define 'artists?'
posted by ChurchHatesTucker at 7:12 PM on May 21, 2012
Who gets to define 'artists?'
Other artists.
posted by charlie don't surf at 8:15 PM on May 21, 2012 [1 favorite]
Other artists.
posted by charlie don't surf at 8:15 PM on May 21, 2012 [1 favorite]
What stops me from getting together a bunch of electricians, founding the Electrical Arts Institute, and declaring any installation that has a member apply for consideration as a work of art thereby allowing the installer to claim a percentage of the sales price every time a property changes hands.
posted by Mitheral at 8:42 PM on May 21, 2012
posted by Mitheral at 8:42 PM on May 21, 2012
Mitheral What stops me from....
Nothing... go for it. Investing in loss is often a good idea.
posted by snaparapans at 8:58 PM on May 21, 2012
Nothing... go for it. Investing in loss is often a good idea.
posted by snaparapans at 8:58 PM on May 21, 2012
Who gets to define 'artists?'
Other artists.
I trust others, at least, will see the inherent problem there.
posted by ChurchHatesTucker at 9:34 PM on May 21, 2012
Other artists.
I trust others, at least, will see the inherent problem there.
posted by ChurchHatesTucker at 9:34 PM on May 21, 2012
Mitheral, Brancusi v. US deals with that, but a better case would be about 15 years earlier, Consmiller v. United States which goes into the difference between an artist and an artisan. Electricians would be considered artisans because their work and professional training is primarily utilitarian. In Consmiller, an importer of sculpted marble mantelpieces was denied classification of the product as fine art, since it had a primarily utilitarian purpose as an architectural structural element, even if it was ornamented.
The Brancusi ruling is very specific, but I haven't been able to locate it, nor Consmiller. SCOTUS rulings from nearly 100 years ago should be widely available and in the public domain but I am striking out. I will consider going down to the local law library to get copies, since I refer to these cases often enough.
posted by charlie don't surf at 9:49 PM on May 21, 2012
The Brancusi ruling is very specific, but I haven't been able to locate it, nor Consmiller. SCOTUS rulings from nearly 100 years ago should be widely available and in the public domain but I am striking out. I will consider going down to the local law library to get copies, since I refer to these cases often enough.
posted by charlie don't surf at 9:49 PM on May 21, 2012
I trust others, at least, will see the inherent problem there.
Not really. I can't find the specific language, but IIRC those other artists would need to be generally recognized by art institutions, art educators, and persons that society in general recognizes as artists, before they can confer any recognition on someone else. So for example, it is unlikely a tattooist would be recognized as an artist because you can't get a degree from accredited art schools in tattooing.
If someone out there has access to Westlaw, I would be really grateful if they could pull a copy of the Brancusi and Consmiller rulings for me. It would save me a trip to the library.
posted by charlie don't surf at 10:01 PM on May 21, 2012
Not really. I can't find the specific language, but IIRC those other artists would need to be generally recognized by art institutions, art educators, and persons that society in general recognizes as artists, before they can confer any recognition on someone else. So for example, it is unlikely a tattooist would be recognized as an artist because you can't get a degree from accredited art schools in tattooing.
If someone out there has access to Westlaw, I would be really grateful if they could pull a copy of the Brancusi and Consmiller rulings for me. It would save me a trip to the library.
posted by charlie don't surf at 10:01 PM on May 21, 2012
Until recently, artists would frequently have patrons - people or syndicates who believed in their abilities, and supported them through lean times in order to help them achieve validation, and sometimes greatness and recognition later on. The artist ate, the patron made money on the work, and the symbiosis was (usually, not always) mutually beneficial. Artists made art.
The first thing artists learn in art schools these days is marketing. The second is financial management. Then, and only then can they start learning about harnessing the muse to the plow, and frequently, that's all they're doing. Find a marketable niche; exploit it; profit. Artists make posters of soup cans.
Because if the artist doesn't do it, somebody else will acquire their work and their licenses and do it anyway.
posted by halfbuckaroo at 3:08 AM on May 22, 2012
The first thing artists learn in art schools these days is marketing. The second is financial management. Then, and only then can they start learning about harnessing the muse to the plow, and frequently, that's all they're doing. Find a marketable niche; exploit it; profit. Artists make posters of soup cans.
Because if the artist doesn't do it, somebody else will acquire their work and their licenses and do it anyway.
posted by halfbuckaroo at 3:08 AM on May 22, 2012
The decision ruled that if an object was manufactured with the intention of being art, under the direction of a person recognized as an artist by other artists, that means it's art.
Apparently SCOTUS was unable to detect circularity in their own argument.
posted by Mental Wimp at 7:41 AM on May 22, 2012
Apparently SCOTUS was unable to detect circularity in their own argument.
posted by Mental Wimp at 7:41 AM on May 22, 2012
Apparently SCOTUS was unable to detect circularity in their own argument.
Apparently you were unable to detect external regulation of the "circularity"
those other artists would need to be generally recognized by art institutions, art educators, and persons that society in general recognizes as artists, before they can confer any recognition on someone else
Sure, there is some circularity in this model, which can lead to insularity that rejects new artforms. For example, my own art school was very conservative and the Dean believed the only subjects that were "true art" and thus allowed to be taught were painting, drawing, and sculpture (including ceramics). Over time he reluctantly included performance art and photography, but those forms had to fight their way into the curriculum. That was before my time so I don't know how that was done, but presumably other recognized artists started working in new artforms and they gained acceptance in academia through art historians doing scholarly research and critical analysis. For example, Performance Art (now taught as "Intermedia") largely came from Dada, and most of them were painters and sculptors. Photography was originally denounced by artists as mere reproduction and definitely not Art (which presumably was a reason the Dean rejected it) but eventually enough critical analysis from art scholars developed. All of these factors drive general public perception of what Art is, one of the external regulatory factors.
For example, Stained Glass has a special status in the law, due to its historical and religious significance. It has obvious primary utilitarian purpose (admitting light, keeping the weather out) so existing laws categorized it as artisanal decoration, not Art. But since it was a traditional religious expression, and there are many cultural monuments in stained glass, it has wide public acceptance of an artform. But mostly it's legally recognized as a specific artform because someone litigated it in United States v. Perry and made that argument. So we see clauses even in the CRRA that specifically mention stained glass.
posted by charlie don't surf at 8:25 AM on May 22, 2012 [1 favorite]
Apparently you were unable to detect external regulation of the "circularity"
those other artists would need to be generally recognized by art institutions, art educators, and persons that society in general recognizes as artists, before they can confer any recognition on someone else
Sure, there is some circularity in this model, which can lead to insularity that rejects new artforms. For example, my own art school was very conservative and the Dean believed the only subjects that were "true art" and thus allowed to be taught were painting, drawing, and sculpture (including ceramics). Over time he reluctantly included performance art and photography, but those forms had to fight their way into the curriculum. That was before my time so I don't know how that was done, but presumably other recognized artists started working in new artforms and they gained acceptance in academia through art historians doing scholarly research and critical analysis. For example, Performance Art (now taught as "Intermedia") largely came from Dada, and most of them were painters and sculptors. Photography was originally denounced by artists as mere reproduction and definitely not Art (which presumably was a reason the Dean rejected it) but eventually enough critical analysis from art scholars developed. All of these factors drive general public perception of what Art is, one of the external regulatory factors.
For example, Stained Glass has a special status in the law, due to its historical and religious significance. It has obvious primary utilitarian purpose (admitting light, keeping the weather out) so existing laws categorized it as artisanal decoration, not Art. But since it was a traditional religious expression, and there are many cultural monuments in stained glass, it has wide public acceptance of an artform. But mostly it's legally recognized as a specific artform because someone litigated it in United States v. Perry and made that argument. So we see clauses even in the CRRA that specifically mention stained glass.
posted by charlie don't surf at 8:25 AM on May 22, 2012 [1 favorite]
Mental Wimp:Apparently SCOTUS was unable to detect circularity in their own argument.
Well the Europeans short circuited that circularity and took that decision away from the art community regarding whether Dan Flavin's work is art or simple light fittings.. they decided it was not art and is now taxed at 20% VAT when entering or leaving the EEU.
Leave it to the non circular technical geniuses, who have never opened a history book or been in a museum, and all the "Art" we will be left with will be pretty calendar pictures.
posted by snaparapans at 8:37 AM on May 22, 2012
Well the Europeans short circuited that circularity and took that decision away from the art community regarding whether Dan Flavin's work is art or simple light fittings.. they decided it was not art and is now taxed at 20% VAT when entering or leaving the EEU.
Leave it to the non circular technical geniuses, who have never opened a history book or been in a museum, and all the "Art" we will be left with will be pretty calendar pictures.
posted by snaparapans at 8:37 AM on May 22, 2012
Good catch, I heard about the Flavin ruling, and I actually think it sort of works. It asserts that the essential artistic quality of Flavin's work is the light it produces, not the mundane mass produced light fixtures that produce the light. I suspect that if Flavin was alive, he wouldn't ship an artwork like this if he could just go there and purchase the components off the shelf locally. But this is all kind of screwed up now since some of the colored fluorescent tubes are no longer manufactured, turning the sculpture into a unique, irreproducible artifact. Curators of Flavin's work are panicking.
I am puzzled though, by the Bill Viola controversy. Why wouldn't he just buy video projectors in the UK and import his video data separately? There is nothing unique about projecting it in American video formats on US equipment. Or maybe there is, do they still use a unique video format like PAL over there for HDTV? If so, this becomes more of an issue of region-locked formats.
Anyway, it's also worth noting that these are all Customs cases that occur on import. None of this could apply to intangible artworks.
posted by charlie don't surf at 9:13 AM on May 22, 2012
I am puzzled though, by the Bill Viola controversy. Why wouldn't he just buy video projectors in the UK and import his video data separately? There is nothing unique about projecting it in American video formats on US equipment. Or maybe there is, do they still use a unique video format like PAL over there for HDTV? If so, this becomes more of an issue of region-locked formats.
Anyway, it's also worth noting that these are all Customs cases that occur on import. None of this could apply to intangible artworks.
posted by charlie don't surf at 9:13 AM on May 22, 2012
I couldn't help thinking about this Kids In the Hall skit.
posted by Galaxor Nebulon at 1:29 PM on May 22, 2012
posted by Galaxor Nebulon at 1:29 PM on May 22, 2012
Apparently you were unable to detect external regulation
Well, I've got my registered artist's card, how 'bout you?
posted by Mental Wimp at 1:45 PM on May 22, 2012
Well, I've got my registered artist's card, how 'bout you?
posted by Mental Wimp at 1:45 PM on May 22, 2012
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This thread has been archived and is closed to new comments
Artists could include a resale royalty clause in their sales contracts, but it would probably be difficult* to enforce.
Ultimately, it's just too difficult to overcome a fundamentally flawed business model. (The existing model lacks consumables for follow-on purchases only the producer can provide.)
I thought this thing that kept selling itself on ebay was a clever end run around the problem.
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*And probably too expensive. Although, if one were to craft an intriguing grant proposal, document the litigation, figure out how to display it ... who knows?
posted by notyou at 10:09 AM on May 21, 2012