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

[Dr. Balls]

On 2/3/2023 at 11:49 AM, Bird said:

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

Have you been presented with other agreements from other artists? I, myself, wouldn't have any issue signing one, but I can also say it may be hard to adhere to any sort of Transfer of Ownership disclosure, as I would likely to have forgotten about it when the art was sold. Everything else seems normal to me. I know that just because I own the art, I can't do any sort of publishing with it - but perhaps there are people who don't know that part of original art ownership? I can't imagine many people don't - but those agreements were created because of that lack of knowledge so

[Bird]

On 2/3/2023 at 1:51 PM, Bronty said:

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

are you suggesting he initially thought it would be well received?

[Bronty]

On 2/3/2023 at 2:52 PM, Bird said:

are you suggesting he initially thought it would be well received?

Didn't you just finish saying you would have no problem signing it?

Maybe he thought there would be more guys like you.

[Bird]

On 2/3/2023 at 3:34 PM, Bronty said:

Didn't you just finish saying you would have no problem signing it?

Maybe he thought there would be more guys like you.

I can only imagine his disappointment when he found out...nope, just more guys like you.

[Bronty]

On 2/3/2023 at 3:54 PM, Bird said:

I can only imagine his disappointment when he found out...nope, just more guys like you.

Guess so!

[delekkerste]

On 2/3/2023 at 3:48 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?

He used to require it, but, as noted, it was scrapped for the July 2016 Profiles in History sale. I bought a BWS piece in that sale; not sure I would have if the TAR business was still in place, though. I mean, it wouldn't necessarily have been a deterrent if the bidding started at zero and I could just adjust my bid to factor in the TAR, but, IIRC, the minimum bid on the lot I won was higher than I would have paid had the TAR been in place. 

I bought a piece of European OA recently that the auction house says its subject to the droit de suite. Not sure to whom I'm supposed to send a check to in the event of a future profitable resale, though...I guess me and my heirs are just going to keep the art until at least 2088 and not worry about it.  

Edited February 3, 2023 by delekkerste

[tth2]

On 2/4/2023 at 12:46 AM, cstojano said:

I felt trapped by the piece and sold it within 6 months. 

I'm always amused by how non-lawyers take all contractual provisions so seriously.  It reminds me of Leonard believing he actually had to follow all of the clauses in Sheldon's roommate agreement.

To the extent Smith tried to exercise any of his rights, which probably would've been unlikely in the first place, I would've felt free to ignore his requests, as the cost for him to try to enforce his rights likely would've outweighed any benefits to him.

[vodou]

On 2/3/2023 at 8:47 PM, tth2 said:

To the extent Smith tried to exercise any of his rights, which probably would've been unlikely in the first place, I would've felt free to ignore his requests, as the cost for him to try to enforce his rights likely would've outweighed any benefits to him.

So is this how you approach all agreements - shake hands up front with full knowledge, thus creating “acceptance”, and then force the other guy to chase your later intentional violations?

Or is this just how you’d treat Barry Smith?

[cstojano]

On 2/3/2023 at 6:47 PM, tth2 said:

I'm always amused by how non-lawyers take all contractual provisions so seriously.  It reminds me of Leonard believing he actually had to follow all of the clauses in Sheldon's roommate agreement.

To the extent Smith tried to exercise any of his rights, which probably would've been unlikely in the first place, I would've felt free to ignore his requests, as the cost for him to try to enforce his rights likely would've outweighed any benefits to him.

Yeah this wasn't really my consideration. It just felt more like a timeshare than I was comfortable with. And in this case the person selling, an heir, was an attorney and a third party was involved that was negotiating, line by line, all the terms. By the time it was done, so was I.

[cstojano]

On 2/3/2023 at 2:18 PM, delekkerste said:

He used to require it, but, as noted, it was scrapped for the July 2016 Profiles in History sale. I bought a BWS piece in that sale; not sure I would have if the TAR business was still in place, though. I mean, it wouldn't necessarily have been a deterrent if the bidding started at zero and I could just adjust my bid to factor in the TAR, but, IIRC, the minimum bid on the lot I won was higher than I would have paid had the TAR been in place. 

I bought a piece of European OA recently that the auction house says its subject to the droit de suite. Not sure to whom I'm supposed to send a check to in the event of a future profitable resale, though...I guess me and my heirs are just going to keep the art until at least 2088 and not worry about it.  

Can't believe that sale was 2016! Wow how time flies when stuck in your house.

Edited February 4, 2023 by cstojano

[Rick2you2]

On 2/3/2023 at 8:47 PM, tth2 said:

I'm always amused by how non-lawyers take all contractual provisions so seriously.  It reminds me of Leonard believing he actually had to follow all of the clauses in Sheldon's roommate agreement.

To the extent Smith tried to exercise any of his rights, which probably would've been unlikely in the first place, I would've felt free to ignore his requests, as the cost for him to try to enforce his rights likely would've outweighed any benefits to him.

The contract language includes language holding the other party liable for the artist’s legal fees and costs.

 I have my doubts that it would be enforceable because it acts like a restraint on the alienation on personal property by giving the original seller some control over its remote disposition. That, incidentally, is the reason we only rent software (a right to use it) instead of actually buying the program. This was an early Microsoft innovation with Windows. (Bill Gates’ dad was a lawyer).  Leasing allows the software company to control its use with remote purchasers which a sale would not.

And then, there is that non-disparagement clause (doubtful enforceability).

Edited February 4, 2023 by Rick2you2

[Rick2you2]

On 2/3/2023 at 9:09 PM, vodou said:

So is this how you approach all agreements - shake hands up front with full knowledge, thus creating “acceptance”, and then force the other guy to chase your later intentional violations?

Or is this just how you’d treat Barry Smith?

That may qualify as the independent tort known as fraud as it deprives Smith of a future expectancy of profit arising from the transaction.

Morally, I agree with you.

[barneythecantankerous]

Not to go over the more sensitive topic which triggered a lot of folks, but there was a fascinating documentary I saw sometime ago, about the Freeport in Switzerland which the more affluent use to store and hide away their art collections. It touches on how some art which was STOLEN/LOOTED (not bought, y'all are being way too generous) during the occupation may be stored there. I'm giving the worst description ever, but it's a great documentary: 

As a European I can tell you unequivocally this supposed law about paying artists is codswallop. No one does this and there's a myriad of ways around it. So just move on from that because it's a non-starter. 

One major issue I have with this topic is that everyone wants to point to the 1% of pieces which sell at eyewatering prices. What about all of the art that never makes back it's original price? Or all the subpar pieces which go for a few hundred bucks? Or just consistently break even? Because those are in the majority. 

 

[vodou]

The Freeports of Europe are fascinating. As always, rules for the many, exceptions for the few.

[cstojano]

On 2/5/2023 at 3:58 AM, barneythecantankerous said:

Not to go over the more sensitive topic which triggered a lot of folks, but there was a fascinating documentary I saw sometime ago, about the Freeport in Switzerland which the more affluent use to store and hide away their art collections. It touches on how some art which was STOLEN/LOOTED (not bought, y'all are being way too generous) during the occupation may be stored there. I'm giving the worst description ever, but it's a great documentary: 

As a European I can tell you unequivocally this supposed law about paying artists is codswallop. No one does this and there's a myriad of ways around it. So just move on from that because it's a non-starter. 

One major issue I have with this topic is that everyone wants to point to the 1% of pieces which sell at eyewatering prices. What about all of the art that never makes back it's original price? Or all the subpar pieces which go for a few hundred bucks? Or just consistently break even? Because those are in the majority. 

 

I was also quite turned off by the daniel maghen auction that listed an obligation to pay the widow of Juan Gimenez some portion of the sales price. It was all very unclear how that was supposed to happen though. I assume it was another line item on the invoice but didn't win the lot anyway. 

Edited February 5, 2023 by cstojano

[Dr. Balls]

On 2/3/2023 at 9:04 PM, cstojano said:

Yeah this wasn't really my consideration. It just felt more like a timeshare than I was comfortable with. And in this case the person selling, an heir, was an attorney and a third party was involved that was negotiating, line by line, all the terms. By the time it was done, so was I.

Yeah, that sounds like someone sucking all the fun out of buying something you're excited about. At least you didn't have to sit through a two-hour long presentation like you do with timeshares... or did you?

[Bronty]

On 2/5/2023 at 5:58 AM, barneythecantankerous said:

Not to go over the more sensitive topic which triggered a lot of folks, but there was a fascinating documentary I saw sometime ago, about the Freeport in Switzerland which the more affluent use to store and hide away their art collections. It touches on how some art which was STOLEN/LOOTED (not bought, y'all are being way too generous) during the occupation may be stored there. I'm giving the worst description ever, but it's a great documentary: 

As a European I can tell you unequivocally this supposed law about paying artists is codswallop. No one does this and there's a myriad of ways around it. So just move on from that because it's a non-starter. 

One major issue I have with this topic is that everyone wants to point to the 1% of pieces which sell at eyewatering prices. What about all of the art that never makes back it's original price? Or all the subpar pieces which go for a few hundred bucks? Or just consistently break even? Because those are in the majority. 

 

thanks for posting that, I enjoyed it

[delekkerste]

On 2/5/2023 at 10:46 AM, cstojano said:

I was also quite turned off by the daniel maghen auction that listed an obligation to pay the widow of Juan Gimenez some portion of the sales price. It was all very unclear how that was supposed to happen though. I assume it was another line item on the invoice but didn't win the lot anyway. 

Yes, ir was just another line item on the invoice.