Introducing Droit de Suite in Canada?

Lady Gaga, the boundary-pushing, shock-inducing, show-stealing pop sensation of our age earned a whopping $62 million in 2009, I recently learned.  James Cameron, the director of Avatar, earned $210 million the same year, and talented actor Johnny Depp earned $75 million.  These three, ranked within the top ten of this year’s Forbes Celebrity 100 list, have made a killing by way of exposure in print, television, radio, online, social media, DVD, CD and performance.  Most visual artists however, even those whose early works now sell for hundreds of thousands, even millions of dollars, are nowhere near so lucky.

Mary Pratt, Study for Butter and Honey 1, 2008

Mary Pratt, Study for Butter and Honey 1, 2008

A recent Globe and Mail article by Kate Taylor drew my attention to the currently hot and controversial issue of potentially introducing visual artist resale rights in Canada – also called droit de suite (meaning right to follow).  She opens by introducing the case of artist Mary Pratt, a Canadian painter who is now in her later years, and suffering from health conditions which prevent her from being able to paint – her job and livelihood – for more than an hour or two per day.  Forty-four years ago, Pratt sold a painting for $50, an amount that in today’s dollar would be equivalent to $332.10.  This piece however is currently being priced for auction by Sotheby’s at somewhere between ten and twenty thousand dollars for resale – an enormous increase of 40 to 50 times the value, of which Pratt will see never a dime.

The main bone to pick here is that visual artists – the type who paint, sculpt or draw – produce products that are perceived and valued as unique, one-of-a-kind objects.  Over time, fame combined with rarity can increase the value and price of a work of art, until it is considered “priceless” (or maybe just worth millions of dollars).  The problem is that, for most artists, this increase in value and the giant profits which come with it never trickle down to them.  Their sales are one-offs – in their youth, they produce un-seen, un-heard-of pieces of work, struggle to sell them for what is usually a pittance, and have no further financial claim whatsoever to any of the royalties their pieces then generate.  They end up spending decades repeating this cycle in order to try and build a reputation, which they may finally achieve near (or after) the end of their lives, when they are no longer capable of producing new art and profiting from their “success.”

Lemon Marilyn, Andy Warhol

Lemon Marilyn, Andy Warhol, originally sold for $250 and now valued at over $15 million

C’est la vie, you may say, such is the life of an artist, n’est pas?  But there is a serious inconsistency here, because lest you forget, actors, directors, producers, authors, and performers also create art, but art which continues to generate royalties for the artists, from which they and their families continue to profit  and live off of for years into the future.  An author can print millions of copies of books to sell, without depleting the value of their product, as actors can profit from millions of DVD sales, and singers can profit from the sale of millions of CDs or MP3 downloads.  The value of their art isn’t touched.  The value of an original piece of visual art however, assuming that it is even reproducible, can be so severely damaged by a large volume of reproductions that it can become all but worthless.  The sad truth of the art world is that we are idol-worshippers – we lust for the original and the unique treasure of the art object itself, one which has garnered respect, value, and fame as it has matured, and one which the artist probably relinquished all financial claims to years ago in exchange for pennies.

So what is the solution to this dilemma?

CARFAC (Canadian Artists Representation le Front Des Artists Canadians) has proposed that the best solution would be to implement droit de suite, the establishment of resale rights for artists.  The foundation of their proposal is that in the future, artists could expect to receive between 3-5% royalties from the re-sale of their artwork, given that it is priced at over $1000, and sold via a public institution.  The royalties would be shaved off of the profits made by the facilitating institution (gallery or dealer), and the artist (and their estate) would be entitled to these royalties until the end of their lives, and for 75 years afterward, ensuring that they and their families benefit from the profits that their work was responsible for generating.


Jean-Francois Millet, The Angelus, 1857-59

Droit de suite is currently in practice in 59 states and countries around the world, including Australia, the state of California, the U.K., and France, in which the protocol originated, and the resale royalties range between 2 and 5 percent.  Droit de suite was originally introduced in France during the mid 1800s, following an tragic incident in which Jean-Francois Millet’s widow and children, after his early death, were left to barely survive in the depths of poverty even as his painting, “The Angelus,” was sold for obscene profits for the dealer.  An outcry arose in their defense, precipitating the very first implementation of droit de suite.

Today, this issue is particularly acute in relation to Aboriginal art.  Much Aboriginal art garners substantial profits in the international art market, and there have been a number of cases in which the Aboriginal artist and his/her family continue to reside remotely in isolated poverty while their pieces are being sold around the world for millions of dollars.  In the case of Australian Aboriginal artist Johnny Warangkula Tjupurrula, a painting which the artist himself sold for $150 increased in value to $205,000, then $500,000 at subsequent auctions years later.  Artist Clifford Possum Tjapaltjarri, also an Australian Aboriginal, had a similar experience, in which his piece entitled Warlugulong increased in value from the $2,500 he sold it for to almost $2.5 million within thirty years.

Clifford Possum Tjapaltjarri, Warlugulong

Clifford Possum Tjapaltjarri, Warlugulong

Perhaps I have sympathy for this proposal because I am an artist myself. Or maybe because I think that art has a value which isn’t always acknowledged or reflected in the real world, when perhaps it should be.  However I must admit either way that the proposal has its flaws.  As some critics have sarcastically suggested, maybe we should start shaving off royalties for architects, craftspeople, software engineers, and so on, referring to the initiative as an absurd “cash-grab.” Others have suggested that the plan could back-fire and end up discouraging art sales and thereby harming artists.  Some of the more astute objections note the risk that it could wind up actually benefiting the wrong artists and at the wrong times – when they are “superstars” rather than struggling artists.

Johnny Warangkula Tjupurrula, Water and Tucker

Johnny Warangkula Tjupurrula, Water and Tucker, now valued by Sotheby’s at $150,000

This being said however, according to CARFAC, even “superstar” Governor General Award winning artists find it “difficult if not impossible to make a living from their art,” while the majority of artists’ incomes average out at less than $14,000 per year, and less than half of artists make more than $8,000 per year, unlike the average software engineer or architect who receives a comfy income in exchange for their creative genius.  And of course, this is all ignoring cases like business whiz Andy Warhol, who raked in impressive millions during his own lifespan.

So what do you think?  If you’d like to share, feel free!  Either way, I hope you take this as food for thought and maybe one day support the forward-thinking initiatives of CARFAC.


One thought on “Introducing Droit de Suite in Canada?

  1. They’ll get paid a lot less now in order to get paid (maybe) a lot more later so it doesn’t really help most artists. 50:1 ratios sound nice but who reading this thinks that even 1% of artists become that popular? It would sure help the companies selling reproductions, though. Imagine selling 5000 paintings at $200 each with no tax, or selling one painting at $9.5M with the tax.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s