Jerry Nadler’s champions ART (American Royalties Too)

Jerrold Lewis "Jerry" Nadler (born June 13, 1947) is an attorney and politician who serves as the U.S. Representative for New York's 10th congressional district. He is a member of the Democratic Party.
Jerrold Lewis “Jerry” Nadler (born June 13, 1947) is an attorney and politician who serves as the U.S. Representative for New York’s 10th congressional district. He is a member of the Democratic Party.

In the creaking library of art world gossip, there is a mouldering volume containing the oft-repeated story of a heated exchange between Robert Rauschenberg Robert Scull.

RR: I’ve been working my ass off so you could make that profit?

RS: What about yours? Your gonna sell now. I’ve been working for you too. We work for each other.

The notorious dialog took place immediately after the Sculls’ very successful 1973 auction of their collection at Sotheby’s Parke-Bernet. It is usually leveraged in order to depict in a single frame the issues surrounding droit de suite, or Artist Resale Royalty (ARR) laws or contracts.

This was 33 years after France officially adopted the very first droit de suite.

Today (Thursday, November 14th)  Blouin ArtInfo blasted a headline reading “Christie’s Latest Blockbuster Edges Closer to the $1B Mark” over a story breathlessly detailing Christie’s November 12 Post-War and Contemporary Art Evening Sale.

“Sixty-nine of the 75 the lots sold made over a million dollars and of those, twenty-three made up to or over $10 million, eleven made up to or over $20 million, and three made over $50 million. “

Yet it is highly unlikely that any of those 69 artists — eleven of whom set new records — nor any of their estates, will receive a penny in royalties from the huge profits made on Thursday by the sellers, their backers, and Christie’s.

And yet, despite the glaring irony of stories like these, all attempts to correct this seemingly obvious injustice have faltered, due in part to past objections from the U.S copyright office, and in part to lobbying by the duopoly of Christie’s and Sotheby’s against any such measures.

Back in February this year, congressman Jerrold Nadler, Ranking Member of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, delivered an opening statement at a subcommittee hearing, and took that opportunity to introduce his American Royalties Too (ART) Act.

Pointing out what he deemed “a lack of fairness” to American artists who, unlike their peers in “seventy other countries …including the entire European Union”  cannot yet enjoy benefits from auction sales of their work, Nadler stated that the time “to correct this deficiency, and injustice, in the law” was long overdue.

 “I firmly believe that the time has come for us to establish a resale royalty right here in the United States.  By adopting a resale royalty, the United States would join the rest of the world in recognizing this important right”

Bill HR 4103 will grant, artists either 5% or $35,000 (whichever is less) in royalties on sales of their works of visual art sold at auction. Reasons for the cap are up for speculation. Our guess is that granting a full 5% across the board would lead to complications with guarantors and discourage auction sales in favor of private ones in cases where anticipated sales prices could be over $700,000. Right now, galleries and private dealers are exempt from the provisions of the act although the bill does stipulate that this is an issue which needs “further study.” The cap, as well, will be re-visited with promised adjustments for USD fluctuations in value and cost-of living.

Christie’s and Sotheby’s are, of course, lobbying against the bill which has backers in Americans for the Arts, the Visual Artists’ Rights Coalition (VARC, which includes the Artists Rights Society), the Visual Artists and Galleries Association, the American Society of Illustrators Partnership, the National Cartoonists Society, the Association of American Editorial Cartoonists, and the Association of Medical Illustrators, among others.

The bill has also, the newly affirmed support of The United States Copyright Office, which, in the face of successful legislation in Europe and elsewhere, has changed its mind about the proposal since it’s initial rejection of it in 1992. Nadler speculates that the USCO changed their minds following the successful implementation of similar laws in Australia and the UK

It has a snowball’s chance of passing. — (The GovTrack site gives it a 2% chance) which, in the House, is actually pretty good since most bills have only a 3% chance of passing anyway.

Nadler himself is optimistic, telling NPR that

“The bill may escape partisan gridlock. “Intellectual property is a very unusual area in Congress. As a general rule, you cannot predict where someone is going to be on an issue like this or on music licensing by knowing that he’s a Democrat or Republican.”

You can track Nadler’s H.R. 4103, via:

Psst: For a sah-WEET iIllustrated Guide to Artist Resale Royalties (aka ‘Droit de Suite’) see Tiernan Morgan & Lauren Purje‘s article in Hyperallergic!

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