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Like composers, fine artists should profit from resale

Painter Robert Rauschenberg’s legacy includes a famous altercation with a collector who made a large profit from a Rauschenberg painting titled “Thaw.” (Pictured: “Retroactive I,” 1964, oil and silkscreen on canvas.)THE NEW YORK TIMES/The New York Times

Two iconic ’60s works by pop art master Andy Warhol — silkscreen portraits of Elvis Presley and Marlon Brando — sold last week at Christie’s auction house in New York for a combined $151.6 million. That’s pretty much business as usual for blue-chip Pop art and other works of that era — the sale, which also included works by Cy Twombly, Francis Bacon, Ed Ruscha, and Cindy Sherman, brought in a total of $852.9 million, “our highest total ever,” according to Christie’s chairman of postwar and contemporary art.

So, famous art sells for millions, what else is news? Well, maybe the fact that the last time the two Warhol canvases sold, in the late ’70s, it was for $185,000. And that the Andy Warhol Foundation’s profit from last week’s sale is exactly zero.

The Christie’s auction again brought attention to the fact that — unlike novelists, filmmakers, and composers — artists do not profit from the resale of their work. A bill before Congress could change all that. The American Royalties Too Act, sponsored by Democratic New York Congressman Jerrold Nadler, proposes a percentage of 5 percent of auction sales of art, including sculpture and photography, go to the artist, with a cap of $35,000. (In the Senate, the bill is being sponsored by Tammy Baldwin, Democrat of Wisconsin, and Edward Markey of Massachusetts.) The bill is limited to auctions because they are public, while gallery and individual sales are confidential, making it difficult to track the necessary information.

The issue is one that artists, dealers, collectors, and auction houses have argued for years. In one famous incident recounted by NPR, the artist Robert Rauschenberg confronted the collector Robert Scull, who had just sold for $85,000 a work that the artist had sold to him for $900. “I’m working . . . for you to make that profit?” Rauschenberg demanded. Scull answered that the price would raise the market value for all Rauschenberg’s work.


That much is true. And some artists themselves are ambivalent about the legislation, which they say helps only veteran artists (or their estates) whose market value is already strong enough to bring them to auction, while inhibiting sales of new work to collectors who are hesitant to take a risk on younger artists. The auction houses, meanwhile, have brought in lobbyists to block passage of the bill, which they see as an additional cost that could dampen prices and encourage sellers to avoid auction houses in favor of private deals.


But the fact is that resale royalties, called droit de suite, are now standard in much of the world, causing the US Copyright Office to drop its previous opposition to such legislation. The new law would enable American artists to benefit from those overseas sales. Multimillion-dollar art prices can feel inflated to the layperson. But the art market is notoriously fickle; artists should be allowed to take advantage of that light for the moments it shines on them, at whatever stage of their careers. As Congressman Nadler said, “This is not an antipoverty bill. It’s a fairness and equity bill.”