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Artist Transfer Rights and Sales Agreements ?

Started by NelsonAI,

51 posts in this topic

NelsonAI

NelsonAI

Posted
Posted

I don't know if this issue has been discussed on these boards before.

 

I am a fan of Barry Windsor-Smith. I was going through his gallery when I noticed he had a artist transfer and rights agreement which gives him a percentage of any profit if the art is resold, the right to temporarily get the art back if he wants to exhibit the art, any future buyer must also sign the agreement.

 

This essentially gives him rights through his life time and partially into his heirs. :o

 

A copy of this agreement can be found here:

 

Link to BWS Transfer Agreement

 

I believe it only applies to certain pieces of art.

 

Would anyone pass on buying BWS art if they had to sign this "agreement"?

 

Cheers!

N

 

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Mac Man

Mac Man

Posted
Posted

I know what my 2c are on this... but I'm a light-weight in this field. I'll just leave it at there being no chance I would spend my money on a piece of art with those conditions. If I spend my hard-earned money on something, I own it. Period.

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NightGallery1

NightGallery1

Posted
Posted

"Would anyone pass on buying BWS art if they had to sign this "agreement"?"

 

Personally, the restrictions in the "agreement" turn me off, and I wouldn't make a purchase under those conditions. I do own a Conan page from his original run, as it was one of my favorite titles from the early 70s when I first began reading a lot of comics.

 

Bill

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Artemaria

Artemaria

Posted
Posted

There are a few ways to interpret this, some of which have been discussed above.

 

Here are some others.

 

 

After decades of terms being dictated to the creators by the large conglomorates that own the characters, in recent times, increased rights with respect to the actual artwork have been given to the creators - e.g.: own the actual boards on which the artwork is drawn, right to sell and profit from those boards, etc.

 

The BWS "Agreement" appears to be an attempt by an artist to exert even more such control over his final product. BWS is trying to push the pendulum even further in favor of the artist.

 

Speculating a bit here, but it must be really painful to BWS to work for days on a piece, sell it for $5K, and then see someone else sell it two weeks later for $9K, and BWS gets nothing from that. Also, this is how BWS makes his money. He does not have a store on the side, does not have a day job, etc. All of his income is derived from selling his art. Thus, it makes sense from BWS's perspective to try and maximize the amount of profit that he can realize from his work.

 

That is what BWS appears to be trying to do by putting the "profit sharing" language in this Agreement. While some may be critical of BWS's request, in comparison with the effort involved in creating the piece, the effort involved in flipping the piece is minimal. By this agreement, both the creator and the flipper would profit from the activity.

 

Something else to consider. Many people complain about how the Kirby family did not get enough money from Jack's work while he was alive. But if a BWS type agreement was in place then, the Kirby family would be well compensated for their patriarch's efforts. Particularly in view of today's recent Kirby prices. There would be fewer stories about those artists who did well in their prime, but then died destitute and homeless. This is a tale all too often told in this hobby.

 

As for the "retrospective" language, it seems as if it only would add value to the work if it was ever displayed in a museum or show.

 

Contrary to some of the theories thrown about on these boards, in the fine art world, the more people that see a piece in person, the more valuable the piece may become as it increases the pool of interest and prospective buyers. The Mona Lisa is the most viewed piece of art in the world. Almost everyone agrees it is either the most valuable or one of the most valuable pieces of art ever. If the theories thrown about on these boards about viewing leading to devaluation had any truth, then the Mona Lisa would be valueless. That, of course, is not the case. No legitimate reason has been proffered as to why theories that do not apply to the world of fine art collecting would apply to the OA world.

 

Having recently seen a great exhibit of comic OA at the Montclair Art Museum, with a great many pieces that I would never have interest in otherwise, I've broadened my collecting horizons. Thus, lending a piece to a retrospective for a week or two - assumiung also that this ever will happen, and that the piece you purchase would be included in such a retrospective -- both of which are exceptionally rare, is not a major inconvenience in most circumstances.

 

So, when you think about the other person's perspective, perhaps the BWS agreement makes a little more sense.

 

Please keep in mind, that I have no affiliation with BWS and have never met, spoken or corresponded with him. But am just offering this perspective to the group for your thoughts.

 

Best regards.

 

- A

 

 

 

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Pirate

Pirate

Posted
Posted

You sell the art, you sell the art. As long as it's not reproduced for profit (then you need an agreement for total sale of all rights associated with that piece), the artist should let it go or raise their pricing ceiling to be more in line.

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LordZarak

LordZarak

Posted
Posted

So BWS "rents" out his art, and doesn't sell. Lame.

 

Say I buy a BWS piece from someone else, and the seller didn't disclose this agreement that he signed.... what happens? I didn't agree to any such terms, so am I held accountable to them? Is the piece then considered "stolen?" What's my recourse?

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Artemaria

Artemaria

Posted
Posted

Zarak -

 

Good points, that bear some clarification.

 

It is not a "rental" agreement. The rights to the actual piece do not revert back to BWS after a specific period of time and you don't have to make payments on a monthly basis as is the typical structure of a rental agreement. It is a sales agreement with certain rights vested in the artist.

 

If you buy a BWS piece from someone else, and there's no agreement revealed to you, and you don't agree to those terms, then it is the other guy's problem. No one could go after you because, as long as you did not know, and you paid full market value for the piece, you should be in good shape. Better hold onto that PayPal receipt!

 

One thing to keep in mind here. Lawyers aren't cheap. In most cases, it would not be worth it for BWS to pay a lawyer $3K to chase someone to get half of a $2K profit. (Even though the agreement provides for lawyer's fees to go the aggrieved party, it does not mean that a court will give them to BWS when all is said and done.) However, I'm guessing that BWS wants to put people on notice that he may decide to do that if he feels things shake out unfairly.

 

Or maybe, he's trying, in his own way (like Neal Adams did in the 1970s and 1980s) to change the way artists are being treated in this industry and hobby.

 

Regards.

 

- A

 

 

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Transplant

Transplant

Posted
Posted
So BWS "rents" out his art, and doesn't sell. Lame.

 

Say I buy a BWS piece from someone else, and the seller didn't disclose this agreement that he signed.... what happens? I didn't agree to any such terms, so am I held accountable to them? Is the piece then considered "stolen?" What's my recourse?

What Artemaria said. If you are a bona fide purchaser for value, you take free and clear of any interest that BWS has in the property. But to do that you have to 1) give real value for the piece (not a gift from the original purchaser and not just a token amount) and 2) you have to buy the piece without notice that BWS is asserting a lien/interest in the property. But your state/country may vary and you would want to consult with a lawyer first. Of course, if you know to consult with a lawyer, you probably already have notice of the lien.
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Sonofahungryghost-migratio

Sonofahungryghost-migratio

Posted
Posted

Good points Artemaria.

 

Just thought I'd point out that California actually has a statute that governs the resale of fine art by virtue of which an artist must be informed of the resale or transfer of the artwork, including the name of the new owner and the price of sale. According to this law, should the price of a piece be more than $1,000 over the original price, the seller must give 5 or 10% (not exactly sure of the figure) of the amount over the original price to the artist.

 

Similar droit de suite rights are also pretty common in Europe.

 

I don't think BWS is coming out of left field with this agreement, as it is a well established practice in fine art, or that he is being greedy. I think BWS' work is pretty close to fine art, and he's trying to get similar rights extended to him and his work by contract.

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Sonofahungryghost-migratio

Sonofahungryghost-migratio

Posted
Posted
Of course it appears that either the seller has to reside in or the sale has to take place in California for it to take effect.

 

Sure -- I don't know where BWS is (or whether comic art would actually be considered fine art for these purposes) but the agreement he proposes pretty much does the job of extending the rights.

 

If you don't like it, don't buy the art.

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Artemaria

Artemaria

Posted
Posted
Good points Artemaria.

 

Just thought I'd point out that California actually has a statute that governs the resale of fine art by virtue of which an artist must be informed of the resale or transfer of the artwork, including the name of the new owner and the price of sale. According to this law, should the price of a piece be more than $1,000 over the original price, the seller must give 5 or 10% (not exactly sure of the figure) of the amount over the original price to the artist.

 

Similar droit de suite rights are also pretty common in Europe.

 

I don't think BWS is coming out of left field with this agreement, as it is a well established practice in fine art, or that he is being greedy. I think BWS' work is pretty close to fine art, and he's trying to get similar rights extended to him and his work by contract.

 

Hungry Ghost -

 

Thanks for the kind words.

 

We are in agreement.

 

Good work on finding the CA statute. Because I live in NYC, I was unaware of the CA statute, but it does not completely shock me. There are a great number of artists living in CA, and it would make sense that an artist/creator lobby would be strong enough to pass such a law in that state.

 

The way I view it, BWS is an all time great artist who is trying to avoid the unpleasant situations that other all time great comic artists found themselves in as they eased out of their prime. While BWS does do some OA work for comics, I am of the impression that the majority of his work is no longer in the comic field.

 

Thus, another thing to consider, is that perhaps, in the field of magazine covers or fantasy illustrations, or whatever it is BWS is doing these days, this type of an agreement may be more common.

 

When all is said and done, if I were in the market for a nice BWS piece (which I am not currently), this type of an agreement would not deter me from purchasing a nice piece. The potential inconveniences (gallery showings 1x every 5 yrs, etc.) to me would be speculative and minimal.

 

Also, if I were to acquire such a piece, I would have no intention of selling it. BUT, if I had to, and realized a profit, 15% of the profit only, would not be a high price to pay to BWS for the years of good feelings that I had by looking at the piece sitting on my wall and making me happy for years.

 

Best regards.

 

- A

 

 

 

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NightGallery1

NightGallery1

Posted
Posted

While I agree that the artist should own the rights to the image itself, the thought that he/she and thier family should receive a portion of the proceeds every time the piece is sold is a concept that really bothers me.

 

As far as buying the art without the intention of ever selling it: some time in the future your goals may be different, or you may want another piece even more. This contract will make many people hesitate to pull the trigger (never mind a trade plus money offer) and will probably result in a lower hammer price when you do decide to sell.

 

Just my 2 cents!

 

Bill

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Artemaria

Artemaria

Posted
Posted

Bill -

 

As always, your points are coherent, valid and well stated.

 

The profit sharing portion of the agreement is limited to 21 years after BWS's death - which is mandatory, otherwise, it would violate a very technical legal concept called the "Rule Against Perpetuities" which I'll have to assume is beyond the scope of interest of most of the people who read these boards, and in fact, probably is beyond the scope of interest of most people who are familiar with technical legal concepts. But the point is, the profit sharing will not last forever.

 

So, if you are a young purchaser, you could just wait it out, but that is a long time to wait.

 

If you do decide to sell sometime within the next forty years, well, then your second point is valid. The agreement would have to be revealed, and the forthcoming bids likely would be lower.

 

Which may be an unfortunate by product of the agreement. By creating mandatory artist participation, there is a reduction of the spoils in which they wish to share. It remains to be seen, however, how much of a financial impact the enforcement of such agreements would have on potential bids.

 

Could be great. Could be not so great. Will be interesting to watch.

 

Still, because of my tremendous sympathy for the people who create this art that we love so much, the agreement would not dissuade me from pursuing a BWS piece directly from him if that is what I was looking for at the time.

 

Best regards.

 

- A

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