Musings on Photography

Droit de Suite, reprise

Posted in business, Droit de Suite, ethics, the art world by Paul Butzi on May 20, 2007

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Mike Johnston, the proprietor of The Online Photographer, weighs in on the Droit de Suite issue, in the context of the reported 2.1 million dollar sale of a Cindy Sherman print.  Mike writes:

The main problem with Paul’s capitalistic critique is that the artwork increases in value not entirely because of what it is, but because of who the artist is, what her significance is, the publicity she engaged in, the awards she won, and everything else she accomplished and achieved in the meantime. In other words, Cindy Sherman herself has added to the value of her 1981 photograph since 1981, even though she hasn’t had possession of it. Art isn’t strictly a commodity, with just material commodity value and no other kind of existence. (Artists themselves “comment” on this fact all the time, for instance when Andy Warhol signed blank sheets of paper and sold them for $5,000 each.)

Mike raises what at first blush seems to be a persuasive argument, because the artist does affect the future value of a work after it’s been sold.

But art is not the only thing on the planet that exhibits the effect of having the value increase (or decrease) as a result of the behavior of the original seller.  If you bought furniture made by Sam Maloof, or Thomas Moser, that furniture has increased in value as the reputations of Maloof or Moser grew.  If you bought stock in an initial public offering, the value of the stock grew or diminished in part because of the efforts of the people who sold the stock – indeed, that’s the very reason for buying stocks.  Other things that exhibit this effect and are sometimes sold for prices that are large relative to the initial purchase price: first editions of books, original manuscripts of books whose authors become famous, autographs of celebrities, houses designed by architects who later become famous, automobiles built/designed by people who later built a successful brand identity (think Shelby), autos built by companies which went bust (think DeLorean), personal correspondence of someone who achieves great fame – the list is endless. 

A builder who builds a reputation as someone who builds houses of extraordinary quality increases the value of the houses he’s built and sold in the past.  A horse trainer who buys a promising colt, sells shares in the horse to defray the cost, and then trains the colt to be a winner increases the value of every share she sold.

Everyone, everywhere, is going through life, achieving things and failing at things, and affecting the value of things they don’t own.  In many cases, they affect the value of things they once owned and then sold. 

But artists feel that they’re special, and that (unlike everyone else) they deserve to share in any increase (but never in any decrease) in value of an object they’ve sold lock, stock, and barrel.  Everyone who sells something that’s later resold for a much higher price experiences regret.  Only artists, however, feel that the government should intercede to diminish their regret by using coercion to ensure them a share in future profits without forcing them to share in the losses as well. 

8 Responses

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  1. Robert said, on May 20, 2007 at 1:06 pm

    The artist indirectly benefits when their previously sold work goes up in value; they can command much higher initial sale prices on new work – which is why Warhol could sell signed but otherwise blank pieces of paper for $5K (as mentioned in Mike’s post).

  2. Mike Johnston said, on May 20, 2007 at 2:12 pm

    All true, Paul, but perhaps a tad disingenuous for being so general. There are many other cases where the proceeds are shared when something far exceeds its expected earning power. A baseball player or other sports figure in the middle of a spectacular season can reasonably expect big bonuses or even the right to renegotiate an already-agreed-upon contract, no? When “Titanic” became the most successful movie ever, James Cameron sued for, and received, a far larger share of the proceeds than he originally was allotted. Corporation Presidents are notorious for awarding themselves generous helpings of profits when earnings are good (and sometimes when they aren’t). When books or records take off, adjustments are often made to reward the authors or musicians. There are all sorts of “fairness mechanisms” that are put in place when things just seem to have gotten too badly out of proportion.

    The idea of Droite de Suite is just to share a little piece of the pie with the original creator of the art when something really takes off and gets ridiculous. I’m not necessarily in favor of the idea myself…it strikes me as rather unwieldy from an implementation standpoint, and moreover I’m pretty sure it’s never going to pertain to me. (I’d worry about it in the same way I’d worry about taxes on lottery winnings…i.e., not applicable.) But I’m kind of surprised that you as a “content creator” would be so averse to the idea…what’s up with that?

  3. Paul Butzi said, on May 20, 2007 at 2:57 pm

    Mike-

    Your response is interesting but a tad disingenous for drawing parallels with situations which are not even vaguely similar.

    Pro Athletes and CEO’s can get big bonuses. That would be like the seller of Cindy Sherman voluntarily giving Ms. Sherman a part of the proceeds from that 2.1 million dollar sale. I’d think that was a nice thing to do, but I oppose the government insisting it be done.

    I don’t know a thing about the James Cameron lawsuit, so I can’t comment on that.

    Yes, contracts are often renegotiated when an artist or author goes blockbuster. Often, the renegotiation includes more money for the artist or author. Typically, the leverage the artist/author has is that, if the contract isn’t renegotiated, they’ll move to a different label or publisher when the contract lapses, and part of the deal is extension of the contract as well as more bucks. Good for them, but that’s not the same as DdS.

    Why am I so opposed to DdS?

    1. Under DdS, artists share in profits but never in losses. This amounts to taking money from the buyer and giving it to the artist, and the proper term for that practice is ‘theft’. Pointing to other events where similar things happen (e.g. fatcat CEOs taking wads of cash) doesn’t make DdS right, it just means that the similar thing is wrong just as DdS is.

    2. Because DdS is mandatory and can’t be waived by the artist, it actually *reduces* the options the artist has available.

    3. DdS benefits hugely successful artists but penalizes emerging artists. From an economic point of view, I worry more about emerging artists than I do about the fabulously successful ones.

    4. If DdS is such a damn good idea, why not implement it for every field of human endeavor? Why are artists so special that they get favored treatment, but the furniture makers, etc. get the shaft?

    5. There’s not a shred of evidence that DdS actually works to the benefit of artists. Not one bit.

    Sure, I’m a ‘content creator’. But DdS is a bad, unfair idea that doesn’t even achieve it’s goal of improving things for artists, and so I’m against it.

  4. Gary Filkins said, on May 20, 2007 at 7:26 pm

    Mike,

    I can’t speak on Paul’s behalf but as someone who does take photos that are currently of no monetary value whatsoever and who may or may not EVER be in a position to profit directly or otherwise from the sale of same, I can’t help being a little disturbed by your closing question.

    My problem with it is simple: merely being a content creator in no way whatsoever makes one beholden to a notion that says I’m entitled to a portion of someone else’s good fortune. There is no basis for suggesting I (or anyone else) MUST want someone else’s profit to be sliced up and a piece given to me.

    If I decide I’m an artist and I decide my art is to be placed into the marketplace, I have a number of options with regard to how I’ll profit initially from those transactions. If I find the *system* is flawed, I may choose to participate or not and I have the final say on whether or not I’m willing to play by whatever rules are currently in force.

    Any artist who’s starving needs to find a day job. I don’t say that because I devalue the importance of art for its own sake or the need for art in society and culture. I say it for the same reason I’d say any carpenter who can’t find work might need to reconsider his chosen field. If eating by earning is objectionable, the fault lies not with those who have a full belly — or a full wallet.

    If artists genuinely want residual compensation for their work, they should collectively devise a way to rent or lease their work so the ownership remains theirs or their estate’s for as long as the law of the land will allow. Then they can renegotiate the value any time the term of the lease or rental expires.

    If I make and then sell you a bottle of wine for $10, it’s a $10 bottle of wine. If you put it in your cellar and it ages nicely and experience with similar bottles suggests it ought to be worth $50 (or some value even more outrageous), then you’re free to sell or auction it and reap the benefit. I made a $10 bottle of wine. Period. Complaining that you made $40 on the increase in value is sour grapes .. no more, no less. Pun intended.

    If people with unreasonable fortunes are willing to pay unreasonable sums for artworks simply because someone else in the future is likely to pay an even more unreasonable sum, that doesn’t change the fact that Untitled No. 92 is a mere photo by someone who happens to be perceived as having created art that has value as investment. It’s a photo. It’s no more a $2 million photo than the first Pet Rock is or was a $2 million rock.

    If you like, I’ll sign a few blank pieces of paper and send them to you for the cost of postage. And if I ever become famous enough that they have any value, I’ll be delighted if you sell them for enough to pay $4 million for Untitled No. 92 or anything that suits you . . .

  5. chuck kimmerle said, on May 21, 2007 at 6:56 am

    I think it’s important to realize that it’s NOT the artist who makes their work valuable, it’s the patrons who were willing to pay the (hopefully) ever increasing prices. For an artist to claim otherwise is absurd and disingenuous.

  6. François Colou said, on May 21, 2007 at 1:35 pm

    (sorry in advance for the bad english)
    I really enjoy this debate. It’s amazing how people from different points of the planet think different.
    I believe we all have a different perspective on this DdS question depending on our cultural background, consciently or not. It’s all about philosophy of life.

    I think north America’s Calvinism is unfair, because it relies on the sweet dream that nature is good… by nature. The consequences for the planet are dramatic. That is a paradoxe.

    For Benjamin Franklin, what I earn in one day is the quantification of my love for God. This sounds very strange to me. What if for me the most precious things are un-quantifiable ? I know I go a bit far away from the subject here. But maybe not.

    So what is fair ?
    In europe, and particularly in France, DdS is fair. Like minimum salary, social security, all these protections against patrons (kiding you Chuck)… these laws just work perfectly for us. But maybe we are wrong.

    It’s a good thing that there are so many ways of thinking in this world. It helps in questioning our certitudes.

  7. Bryan Willman said, on May 21, 2007 at 3:56 pm

    François Colou’s observation that how you feel about this is probably partly a cultural thing is surely true. To libertarian/capitalist folks, it seems like a communist idea.

    In any case, Mike Johnston’s “analogy” is horribly flawed. A VERY common thing is for founders of companies to sell a big stake, do a very great deal of work (maybe all the real important work) and get a quite small share (sometimes zero more than salary) Fatcat CEOs profiting on losing companies are actually an egregious anamouly (and is viewed as such).

    But I think the biggest hazards to DDS are practical and market based. The practical is the huge “oh I don’t want to fuss with that” issue, and the pain of collecting the stuff (similar to problems with copyright in the US), the even stronger market issue is that people will just “go around it.”

    Example – in the US, the famous song “happy birthday” is (or was) under copyright. The owners started pressing claims against many who performed it. That’s their right. The main effect? EVERY restaruant that used to sing it now instead sings some other song, often one they own the copyright to as a work for hire. And the huge number of people who sing it in their houses? Well, they claim fair use, and/or are uneconomic to pursue.

    Art is ULTRA FUNGIBLE and DISCRETIONARY – the average buyer very much CAN say “I don’t need this” or “I won’t put up with that” and go get something else instead. So DDS and the 1000e floor of DDS may very well damage the market for covered artworks. Indeed, it encourages a kind of arbitrage in which people only trade in works below 1000e, or only buy as 2nd buyers (thus skipping the “original buyer” claim) and so on.

    It’s a little like the employment contracts in France that make it very hard to discharge anyone. People with jobs really like them (duh) Employers hate them, and it seems quite clear it’s a serious drag on employment. While attempts to change it provoked riots/protests, it seems that these rules are actually hurting employment, that is, that they cause unemployment. So they probably reduce per-capita wealth (in France), though of course the reduce risk for the protected groups.

    In short, be very careful what you wish for…..

  8. François Colou said, on May 21, 2007 at 5:59 pm

    Bryan, concerning unemployment in France, there is another explanation : NAIRU. As a patron or shareman, you need to maintain big pressure on the employees. Is NAIRU a libertarian concept ? I don’t think so. This sums up the great hypocrisy of libertarism : free the market, while artificially maintaining a lot of unemployment and homeless, so you get control of the employees and you supposedly maintain inflation low. 50% of french people think with anxiety that they could become homeless at one moment in their life, with a proportion of 62% in the 35-49 years old segment. Democracy ? I agree on one point : be careful what you wish for…

    We went far away from the subject. Droit de Suite seems very logical in a country where you can’t sell your author status. For example, when you are the author of a movie, it is for the rest of your life. Producers, studios and broadcasters only buy the right to use it, they don’t own it. They can’t do anything they want to it if you don’t agree, and each time your movie is broadcasted, you as an author gets some cash from the authors right management association (SACD), regardless of the contract you signed with your producer.

    Do we own anything anyway ?
    Time to go to bed.


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