Should Artists or Owners be Compensated Decades After They Sell Artwork? 3 3

[PhilipB2k17]

On 1/29/2023 at 1:40 PM, Dr. Balls said:

So, from the article, the heirs allege that Thannhauser was "profiting" from the misfortune of German Jews. The Guggenheim also allege Karl Adler's sale of the painting to Justin Thannhauser was a fair transaction between parties with a longstanding and continuing relationship. So, hard to say where that falls - but in the spirit of discussion, let's leave out any sort of establishment that anyone is being taken advantage of, since we have no evidence of that in the article other than one party saying it was, and the other saying it wasn't.

Europeans weren't selling their art in the 80s, I had stated that there was a discussion regarding artists who sold their art in the 80's (like Dave Cockrum, for instance) should be entitled to a percentage of the sale price now once prices had reached astronomical values - and that Europeans currently do this on their purchases/sales. I assume that the seller peels off a percent or two and sends the original artist a check? How is it tracked? Is there accounting for this? I have no idea, other than Europeans in the discussion were adamant that this is how it's done.

The comparison between the two is that artwork is sold, and decades later when it becomes valuable - an original owner, or a secondary owner (or advocates of those) are looking for recompense because they sold the artwork under circumstances beyond their control.

The topic isn't about what those circumstances are - Dave Cockrum selling his originals to make a living is far less of an emergency than a Jewish family trying to flee Nazism - the topic is whether if people feel that there should be compensation made to previous owners 50-80 years prior.

 

Speaking as a Jewish person, it seems like selling off a Picasso to obtain enough funds to successfully escape Nazi Germany was well worth it. Especially if they got anything close to FMV at the time of the sale. And, I wonder if the family itself is suing for the painting, or representatives of a Trust or estate set up for them after they died. It may be telling if the family members who actually sold the painting and escaped were not the ones to initiate the lawsuit. 

Edited January 30, 2023 by PhilipB2k17

[Rick2you2]

The short answer is no. It just makes a transactional mess. Does the purchaser of a Birkin Bag have to pay the manufacturer, as artist, in the event of a resale? What about an original Eames chair, or high end Art Deco furniture?

I could be wrong about this, but as I recall, that European law is limited to dealers selling things above a certain amount. Come to think of it, what of International sales? Am I expected to fork over a few bucks to Jordi Benet if I buy and sell a Clara page? I don’t think so.

Also, bear in mind that the European approach would have the effect of decreasing the value of a purchase, and hence, it’s market price, since it would provide a permanent flow of funds to the artist. Those should act as a deduction to its value. 

Artists, at least regarding modern OA, already have a stream of revenue to exploit. It’s called copyright law. They generally own the right to reprint and recreate it, subject to a publisher’s presumably retained right to reprint.

 

 

 

 

 

 

 

[MAR1979]

Regarding Comic Book OA -

Back in 2010 I purchased a  large number of pages direct from an Artist at above estimated FMV.

If i had sold it a year later I would have at an estimated 20-30% loss. The Artist would not have reimbursed me for the loss. Forward to the present and the art accounting for inflation is estimated at 3x greater than what I paid. 

If the Artist is not responsible for any potential loss on my side, then they have no claim on any gain from my side.

Of course there are a multitude of situations and therein lies the problem. The same protection I have as an honest more than fair paying buyer also are what shields the scumbag Comic OA dealers.

P.S. can of worms - its very rare when an Artist reports and pays income taxes on what historically have been private cash sales.  

Edited January 30, 2023 by MAR1979

[Bronty]

On 1/30/2023 at 8:48 AM, skypinkblu said:

I have mixed feelings about this. My first thought was that thank G-d, someone actually BOUGHT it from them, so they could get out, because so many people just had everything stolen.

Did the person buying it take a risk?

My 2nd thought was that the Holocaust was not the first massacre, my family fled during the Pogroms...they lost everything, or so I was told...how far and how many times is it logical to go back? 

I'm sorry for the family, as I am for anyone who was involved in the horrors... but I also wonder if the family would have survived at all, if the dealer did not take a risk?  Does that not make it a tiny bit more acceptable? 

If the Nazis had taken it, absolutely it should go back, but that doesn't seem to be what happened.  The Nazis didn't just go after the Jews, they also went after people who helped them survive.

Excellent questions, and that's the heart of the matter to me.  

My own family had property expropriated during communist times; we aren't getting that back any time soon.     There are a million unfortunate injustices that have happened here, there, everywhere.    We can't right every wrong in history, nor would we be able to even fully agree on what is right and what is wrong.   

I'm not a lawyer ,but at the end of the day its a legal proceeding so I believe it boils down to the legal question of whether a sale under this particular form of duress is a valid contract or not.    

I can see the argument for both sides legally as to whether it may have been a valid contract, but to me the common sense POV on it is that "a deal is a deal" and a deal 80 years ago doesn't get unwound now.     

The descendants are looking for a windfall and they will take what they can get.    I don't think its good policy to encourage those sorts of claims because like it or not, we can't right every wrong.    

Edited January 31, 2023 by Bronty

[Crowzilla]

On 1/30/2023 at 2:34 PM, MAR1979 said:

If the Artist is not responsible for any potential loss on my side, then they have no claim on any gain from my side.

That has always been my biggest beef with any of the Artists Rights laws. The money only flows one way, even though every buyer assumes 100% of the risk.

The lawyer quoted in the article gives a poor example of how mechanical (and other royalties) work. Comic artists receive payment for creating the art, and most receive royalties when the art is republished in TPBs, or if it's used as a poster, or made into prints, etc. Musicians receive royalties from when the song is played or sold/downloaded, that is their publishing royalty. But if Taylor Swift sells her original hand-written lyrics to a song she wrote, that ends her ownership of the physical copy of the lyrics. The new owner can sell it and never have to pay her a royalty. If he turns the physical lyrics into some sort of poster reproduction available for purchase, then yes, it needs to be licensed and royalties paid. Same with authors and filmmakers. If JK Rowling sells her hand-written Harry Potter -script, that is the end of her ownership and right to receive any money from it. You can't publish it, or make prints without paying her, but you can certainly sell the physical copy without owing anything.

The ARR law is a horrible one, and I hope it makes no inroads in the USA.

 

[exitmusicblue]

I wrote a paper about reparations once... indeed, this is not the place.

[Dr. Balls]

On 2/1/2023 at 3:51 AM, exitmusicblue said:

I wrote a paper about reparations once... indeed, this is not the place.

Yeah, 'reparations' was the wrong word for me to use (and I am editing my original post) - because I wasn't trying to equate one with the other, and that probably caused the few people who took issue to not see that I ended each of my replies with the question I had intended to ask in the thread. At least now, the thread discussion has gotten to where it was originally intended: are artists entitled to a portion of sales when art exponentially increases in value in the decades since they sold it.

[Rick2you2]

On 2/1/2023 at 10:29 AM, Dr. Balls said:

Yeah, 'reparations' was the wrong word for me to use (and I am editing my original post) - because I wasn't trying to equate one with the other, and that probably caused the few people who took issue to not see that I ended each of my replies with the question I had intended to ask in the thread. At least now, the thread discussion has gotten to where it was originally intended: are artists entitled to a portion of sales when art exponentially increases in value in the decades since they sold it.

Why stop there? Should the makers of the Cobra 427 auto get a piece of any sale since it is a collectible which can now sell for millions? What about home builders? The heirs of the Levittown developments would be enjoying a huge income stream with that concept in place. No one forced the artist to sell the originals. They could have sold copies and kept the originals.

[Dr. Balls]

On 2/1/2023 at 11:52 AM, Rick2you2 said:

Why stop there? Should the makers of the Cobra 427 auto get a piece of any sale since it is a collectible which can now sell for millions? What about home builders? The heirs of the Levittown developments would be enjoying a huge income stream with that concept in place. No one forced the artist to sell the originals. They could have sold copies and kept the originals.

That's kinda why I floated the question - I wanted to see where other people(who might be in favor of it) felt that line of thinking ends? Does it have a value cap? And when does the second guy in line of ownership look for his payout?

Edited February 1, 2023 by Dr. Balls

[Hockeyflow33]

On 2/1/2023 at 12:57 AM, Crowzilla said:

That has always been my biggest beef with any of the Artists Rights laws. The money only flows one way, even though every buyer assumes 100% of the risk.

The lawyer quoted in the article gives a poor example of how mechanical (and other royalties) work. Comic artists receive payment for creating the art, and most receive royalties when the art is republished in TPBs, or if it's used as a poster, or made into prints, etc. Musicians receive royalties from when the song is played or sold/downloaded, that is their publishing royalty. But if Taylor Swift sells her original hand-written lyrics to a song she wrote, that ends her ownership of the physical copy of the lyrics. The new owner can sell it and never have to pay her a royalty. If he turns the physical lyrics into some sort of poster reproduction available for purchase, then yes, it needs to be licensed and royalties paid. Same with authors and filmmakers. If JK Rowling sells her hand-written Harry Potter --script, that is the end of her ownership and right to receive any money from it. You can't publish it, or make prints without paying her, but you can certainly sell the physical copy without owing anything.

The ARR law is a horrible one, and I hope it makes no inroads in the USA.

 

Lets start pushing forward that the owner of the original page receives a share of royalty money anytime it gets reprinted. That makes just as much sense as this nonsense going around.  

[thethedew]

I've never seen an example, but supposedly Barry Windsor-Smith stamps the reverse of each of his pages with a contract calling for any and all future sales to send him a percentage, presumably on the Honor System.  If true, unenforceable but interesting.

Can anyone confirm, or is that an Old Collector's Wive's Tale?

[Grendel72]

I can confirm that he requires a contract to be signed (or used to). It was a separate contract, not stamped on the pages. 

[Bird]

On 2/3/2023 at 4:30 AM, Grendel72 said:

I can confirm that he requires a contract to be signed (or used to). It was a separate contract, not stamped on the pages. 

No, he does not.

[cstojano]

On 2/3/2023 at 1:48 AM, thethedew said:

I've never seen an example, but supposedly Barry Windsor-Smith stamps the reverse of each of his pages with a contract calling for any and all future sales to send him a percentage, presumably on the Honor System.  If true, unenforceable but interesting.

Can anyone confirm, or is that an Old Collector's Wive's Tale?

I recall these were in place for some/all the Darabont auction lots but they were apparently waived at the 11th hour. I'm sure some insider knows the details more. Discussion at the time suggested the agreement suppressed the bidding. 

[Twanj]

http://www.barrywindsor-smith.com/galleria/tar.html

"

WINDSOR-SMITH STUDIO ORIGINAL ART SALE AGREEMENT

This standard Transfer and Sale Agreement must be completed by the purchaser
of any original Work of Art to which the Artist retains the rights stated herein,
including all rights of reproduction."

[cstojano]

On 2/3/2023 at 8:02 AM, Twanj said:

http://www.barrywindsor-smith.com/galleria/tar.html

"

WINDSOR-SMITH STUDIO ORIGINAL ART SALE AGREEMENT

This standard Transfer and Sale Agreement must be completed by the purchaser
of any original Work of Art to which the Artist retains the rights stated herein,
including all rights of reproduction."

I bought a piece last year with one of these agreements attached (not BWS) but there was no profit sharing. It was just an agreement noting rights to re-photograph, a notification of ownership change, and rights to exhibit (within reason). I felt trapped by the piece and sold it within 6 months. 

Edited February 4, 2023 by cstojano

[Dr. Balls]

On 2/3/2023 at 9:46 AM, cstojano said:

I bought a piece last year with one of these agreement (not BWS) but there no profit sharing. It was just an agreement noting rights to re-photograph, a notification of ownership change, and rights to exhibit (within reason). I felt trapped by the piece and sold it within 6 months. 

Maybe whomever the artist is is trying to maintain some sort of provenance? Which, I could understand, but that kind of request doesn't come across very well. I'm no lawyer, but I'm guessing that the reasoning behind the "signed agreement" is to create a loose contract with someone that circumvents the need to copyright the art - which I don't think they can do as it has characters trademarked by the publishers that hired them to create the art?

 

[Bronty]

yeah that's somewhat understandable.   If he wants to re-photograph and/or exhibit he has to know where the pieces are.

Here's a better idea - take great images before you sell, and keep the pieces you want to exhibit.

[Bird]

On 2/3/2023 at 10:02 AM, Twanj said:

http://www.barrywindsor-smith.com/galleria/tar.html

"

WINDSOR-SMITH STUDIO ORIGINAL ART SALE AGREEMENT

This standard Transfer and Sale Agreement must be completed by the purchaser
of any original Work of Art to which the Artist retains the rights stated herein,
including all rights of reproduction."

I've purchased art directly from BWS starting around 2000 and have never been presented with the TAR. He may have done it at one time but it has never come up. I'd sign with no issue as I have stated on the boards before, but it was never presented

[Bronty]

Maybe he thought better of it when buyer feedback was negative?