Musings on Photography

Copyright

Posted in ethics, web issues by Paul Butzi on December 24, 2008

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From this article on the Huffington Post’s practice of stealing copyrighted content from blogs:

But Peretti says some 95 percent of The Huffington Post’s traffic goes through the headline links, and that when The Huffington Post does original reporting or adds to a story, it changes a headline link to point to its content.

Otherwise, the Chicago project picks the ‘best’ stories from publications like the Chicago Tribune, the Sun Times and the Chicago Reader.

As for disgruntled publishers, Peretti seems genuinely perplexed and says The Huffington Post links should be good for them — and suggests that upset editors get in touch and build relationships with Huffington Post editors.

Well, now. If there’s one thing that really, and I mean REALLY pisses me off, it’s the smug assurances of people who violate copyrights that the violator’s actions are actually beneficial to the copyright owner.

Here’s a clue for the HuffPo. When someone owns something, THEY get to decide what gets done with it. If you want to use it, they have the right to prevent that, EVEN WHEN LETTING YOU USE IT MIGHT BE IN WHAT YOU THINK IS THEIR BEST INTERESTS. That’s because the owner of the copyright gets to decide what his or her interests are, not you. And the reason for that is that you, being a thief, can be presumed to be a lying, cheating, no-good worthless scoundrel who would sell his own grandmother into slavery and prostitution just so you can buy another venti vanilla latte in that special cup that fits the cup-holder in your Lexus.

If you’re so damn sure that what you’re about to do is in the interests of the copyright holder, why don’t you take the simple step of actually asking for permission, in writing, before you use the material? It’s not like it’s hard to send email, even if you work for the Huffington Post.

I suggest that the people who have had their content appropriated by the the HuffPo ignore the advice of HuffPo cofounder Johan Peretti. Instead of getting in touch with the editors of the HuffPo and building a relationship, I’d suggest that you instead file a big lawsuit and take money out of the pockets of Huffington and Peretti and all the venture capitalists who’ve funded the HuffPo.

Take a lot of their money. Take all of their money, and then take some more. And when you see them begging on the street in abject misery, you might want to lean over, and whisper in their ear “You shouldn’t have violated my copyright. I hope you go hungry forever. I hope your children have to lie about who their parents are to avoid embarrassment at school. I hope that when you go to a party and are introduced, people will look at you with disgust and refuse to shake your hand or talk to you.”

I hope that’s the only sort of relationship the folks at the Huffington Post ever have from this day forward.

The Photos the Government Compells You to Make, update

Posted in business, ethics by Paul Butzi on April 16, 2008

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For those who are interested, a little more information on the Elane/Elaine Huguenin case is now available.

A PDF of the court opinion is available here. There’s lots of detail there, including the email correspondence between Elaine Huguenin and Vanessa Willock and Elaine Huguenin and Ms. Collinsworth. Quite a few assertions about the behavior of Elaine Huguenin are debunked.

Some further insights into the legality of the situation (and the behavior of human rights commisions) can be found in this post and this other post on http://www.volokh.com. What I find particularly chilling is this passage:

For instance, the Commission’s rationale isn’t limited to wedding photographers, who some people argued (wrongly, in my view) aren’t really “creative” enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don’t want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.

After all, here’s the entirety of the Commission’s discussion of the First Amendment issue:
The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: “Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent.” Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).

That’s a judgment that the First Amendment just categorically doesn’t apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.

I have my own opinions of the motivations of Elaine Huguenin, Vanessa Willock, and Ms. Collinsworth. I’m not really interested in public discussion of those views. If you have your own views, great. If not, that’s great, too. I appreciate that other people are highly interested in that aspect of the story, but because the motivations don’t bear on the free speech aspect of this issue, I’m not interested in hosting that particular discussion here. In the interests of not letting the discussion go off on tangents, if you post comments on that aspect of the story I’ll likely delete them.

Likewise, I’m uninterested in discussions of the need for anti-discrimination laws, or in discussion of my own prejudices. Again, those are perhaps interesting discussions but I’m not going to host them here, and I’ll delete comments on those subjects as well.

What I do find interesting is that a) apparently the world at large does not see being a photographer as an expressive activity on a par with being, for example, a playwright or essayist, and b) there are apparently a large number of people who feel that even if one is a ad writer or a playwright that offers to do plays on commission, or whatever, anti-discrimination law trumps your right to free speech.

Consequences

Posted in business, ethics by Paul Butzi on April 12, 2008

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Probably some of the readers of this blog are wedding photographers (I know of at least two), but I’m guessing most of us aren’t. So it might seem to those of us who are not that this issue doesn’t really touch us. That’s what I thought at first, too.

For the past month or so, I’ve been working on cleaning up my website, moving it from being maintained with Microsoft Frontpage to tools on the Mac, and getting rid of out of date content, changing my print pricing, and so on. One of the things that was on my list was lowering the prices I was going to charge for doing printing for people, and in particular the prices for doing large prints. I was actually tackling that task this morning, editing the pricing formula for printing on this page when I came across the following words:

I reserve the right to refuse to print any image, at my discretion.

I didn’t have some particular category of image in mind when I wrote those words. That sentence was just my nod to the fact that there are images that I would not want to print. Which images make me sufficiently uncomfortable that I would refuse to print them – that doesn’t much matter, and I expect that pretty much everyone on the planet has some category that they think is over the line.

Well, I can reserve the right to not print images all I want, but apparently the human rights commissions of the world may well decide that I’m discriminating against a protected class of person if I refuse to print something. The potential damages from having the Washington State Human Rights Commission or the King County Human Rights Council fine me are substantial. The standard of proof for both seems very low, there seems very little a person can do if the ruling goes against you, and in any case, a complaint will cost a lot to defend even if in the end the complaint is dismissed.

So I’m left with a dilemma. I like providing printing services. There aren’t many places that offer to do big prints for individual photographers at prices that leave room for the photographers to sell the prints and make a profit. Virtually none of the places that offer the pricing I do offer the sort of handholding I do – I’m happy to help people through what profiles they should use with the images they send me, help them decide how big an image can be printed and still look good, and help them deal with the issues of making big prints, including sharpening and stuff. I find that sort of thing fun. My plan was to that with the big web site update I would start offering more interpretive printing services – you send me the raw image, I do my best to make the best print possible. I’ve gotten lots of requests for that.

On the other hand – it’s not a big money source for me. It pays enough to subsidize my personal work, and I expected the actual profits to rise when I dropped prices in the next few weeks. But I’m not sure I’m willing to give up the right to refuse to print images that I think are outside the pale.

So for the rest of the morning, as I do chores, I’ll be pondering whether the game is worth the candle. At this point it seems pretty clear that it’s not. There’s no way I can justify the meager profits in the face of the risk, especially the risk that someone will read those words “I reserve the right to refuse”, and come gunning for me just to set a precedent with the local Human Rights Commision.

Legal arguments often talk about the ‘chilling effect’ of certain decisions as if it were a purely abstract thing that didn’t actually happen in the real world. I can assure you that’s not the case.

The photos the government compels you to make

Posted in ethics by Paul Butzi on April 11, 2008

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Some time back I wrote about the photos not to take. That post, and the followups to it, are still among the most read posts on this blog.

Yesterday, I read about an artist being penalized for refusing to make art for hire, based on her religious convictions.

The short version of the story is that a lesbian couple approached Elane Hugenin, a wedding photographer, wanting her to photograph their same-sex commitment ceremony. Elane refused. Vanessa WIllock filed a complaint with the New Mexico Human Rights Commission. The NM Human Rights Commision found agaist Elane, and she’s been fined

There are interesting issues here. An interesting summary of the legal issues can be found here. It’s worth reading. I’ve spent much of the last day and a half (including essentially ALL of the time I’ve spent this morning pressure washing the patio) pondering how best to weigh and care for the compelling interests of the parties involved. While I haven’t changed my mind, there’s a lot there than I thought at first.

Adobe Photoshop Express Online

Posted in business, ethics, photoshop, software by Paul Butzi on March 28, 2008

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I see (in uncountably many places) that Adobe have released their spiffy, wonderful new online version of Photoshop Express. It will be, we are led to believe, all singing, all dancing, and will make our beds, cook our breakfasts, and keep our mugs of tea warm all the time.

So I went to the website to take a look, and because I am sort of paranoid about such things, I first took a look at the ‘Terms’, the link to which is in light gray on a grey background (almost as if Adobe would prefer that you not look at them). The terms linked to at the target to that link link further on to further terms, where we must scroll down through several pages of dense legal boilerplate before we find the following:

8. Use of Your Content.

Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.

The upshot is that any time you submit a photo for inclusion in the publicly accessible area, you are giving the photo to Adobe. Period. They’re not claiming ownership of your content. But if someone can point out something that owning your content would allow them to do that this license doesn’t let them do, I’ll be mighty surprised.

Now, Adobe are free to place any licensing agreement on their software they like. But I think this is a horrible, disgusting, unethical, lowdown, scumsucking, awful, pathetic rights grab here.

I hope nobody ever uses this online software, ever. Because I’m sure that now the uproar is started about this disgusting license, Adobe will knuckle under and remove this rights grab crap. But I’d also note that they reserve the right to change the terms at any time, and I’ll bet a nice breakfast that eventually Adobe will submarine that rights grab right in there again. I’m willing to make that wager because anyone who would put those terms into the license to begin with is such ethical scum that they’d try to get it back in there later.

I hope they all lose their jobs and have to beg on street corners. And this time, I really mean it.

Adobe Followup

Posted in Adobe Lightroom, ethics, photoshop, software by Paul Butzi on January 8, 2008

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John Nack weighs in with Adobe’s definitive word on the upsetting business with Adobe CS3 apps contacting “192.168.112.2o7.net”, a domain name clearly chosen to look like it’s a local network address (although it’s not):

Q.: Why does Adobe use a server whose name is so suspicious-looking?
A.: I’m afraid the answer is that we don’t really know. The fact is that this SWF tracking code already existed on the Macromedia side at the time the companies merged, and it was adopted without change by a number of products for CS3. The people who wrote the code originally did not document why they used that server name, and we can’t find anyone who remembers. I’m sorry we aren’t able to provide a more solid, definitive explanation.

I would just like to point out that, now that they’ve had plenty of time to work this all out without the problems of having people on vacation over the holidays, Adobe has managed to come up with a definitive answer, and the answer is “Gee, we really don’t know.”

Boy, howdy, Adobe. You guys are really doing just exactly the right thing to maximally erode my trust and confidence. This is the best answer you can produce? I don’t know about anyone else in the world, but when you give me an answer like this, my conclusion is that you know the real answer, and you don’t want to give it, so you came up with a bullshit story like this.

Let’s just refresh our memories, with John Nack’s words from his original post on this subject:

As I say, now is the perfect time for people to throw around whatever wild assertions they’d like, given that so many people are out of the office and can’t respond.

Hey, John. It turns out it didn’t make much difference. Apparently an Adobe software development team at work doesn’t get answers any better than an Adobe software development team off on vacation and unreachable does. I think you’ll find it works better if you keep the whining about those annoying customers to a minimum. That’s probably a good thing for a senior product manager to know. And I offer it up, here, completely free of charge. Consider it a goodwill gift.

From the Adobe website referenced in John’s most recent post:

If you would prefer that the software not make these calls, simply disable the Welcome Screen in your Adobe software by selecting the Don’t Show This Again option in the lower left corner of the Welcome Screen.

This would seem to imply that turning off those welcome screens would mean that I could stop worrying about all this. But then I read, on the same web page:

…some Creative Suite 3 software contains embedded web browsers, any user action which requests Adobe.com content from such an embedded browser will cause the host software to make the tracking calls.

For example, clicking Bridge Home in Adobe Bridge CS3 will cause its embedded browser to visit an Adobe.com page and initiate this tracking. If you would like to prevent this from happening, turn off Bridge Home by opening Adobe Bridge CS3, choosing Edit > Preferences (Windows) or Bridge CS3 > Preferences (Mac OS), and deselecting Bridge Home under Favorite Items.

Uh huh. So turning off those Welcome screens means no more calls to Omniture’s servers. Except, of course, for all those OTHER calls to Omniture servers, like those that happen when I hit ‘Bridge Home’. One is left wondering, really, not just whether it’s possible to turn off all this crap, but whether Adobe actually has any employees who can muster the fairly minimal competence required to give us a definitive list of all the things we might do that will trigger this behavior.

And then, just as a final note, I followed the link from that web page to take a gander at Adobe’s Online Privacy Policy. And there, I found the following:

Please note that the practices of Adobe Systems Incorporated, its affiliates, and agents (“Adobe”), with respect to data collected and used by Adobe in connection with this website and all other Adobe.com, Acrobat.com and Acrobatusers.com websites of Adobe Systems Incorporated and its affiliates with links to this policy (collectively, the “Site”) and Adobe products and services available or enabled via the Site (“Products and Services”), are governed by this online privacy policy (“Privacy Policy”) as amended from time to time, and not the privacy policy in effect at the time the data was collected. [emphasis mine]

In other words, what Adobe are saying is that the privacy policy that applies is not the one in effect at the time they collected data from you. It’s the privacy policy that is on that website, which Adobe are free to change AFTER they collect the data. So they’ll give you lots of assurances now, collect the data, and then in the future, they’ll amend the policy, and do whatever they like.

I think that’s unspeakably scummy.

Disclaimers

Posted in ethics, web issues by Paul Butzi on September 22, 2007

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Simon Minshall comments:

Does HP or your rep know you’re writing about your experiences about their product? I’m about to buy a 17″ printer and really only considered Epson since i’ve seen it’s output.

As direct result of your writing and the type of experience you’re having, i’m now looking into HP as an viable alternative. The fact that there are a number of negative comments serves, to my mind, to reinforce the validity of your opinions and earns my trust as a reader.

Now this blog could, and i’m not saying that i think it is, but it could be seen by the more cynical among us as a clever marketing scheme.

In any case, I’m enjoying following your story. If HP do get new business as a result of your publicity then YOU should be compensated.

These are good insights, and some excellent questions.

Responses, in order:

I don’t know if HP or my rep know about or read what I write here. If they do, they haven’t let me know. I would like to think that I’m so prominent and influential that the entirety of HP hang on my every word, and that my whims move worlds. But I sincerely doubt it. The readership is just too small, here. Folks like Michael Reichmann, over at Luminous Landscape – now he does seem to get good treatment from companies. Me? I just sit here and feel lonely and neglected.

No, that’s not quite right. I sit here, and I get the same service that my printer rep (JVH Technical Services in Bellevue, WA) gives to all his customers. If I have a problem, I call John, and he helps me the way he helps all his customers. I don’t take money from any manufacturer based on what I write. I’ve been offered free stuff to review. Strangely, this hasn’t worked out well for the people who offer me free stuff, and I’m a little skittish about that now. And when I get a free thing to review, I make it clear that I got it for free.

I’m glad that what I write helps people to explore all their options and make better choices. As you search for a 17″ printer, remember that a lot of what I love about the z3100 (in particular, the built-in profiling) might not be in the printer you’re looking at. I hear a lot of pining for a 17″ version of the z3100, though, so there’s hope. Myself, I wish printer manufacturers would build a 36″ printer model, in between the 24″ and 44″ models. Nearly all of the printing I do I can do on a 24″ printer. 90% of what can’t be done on a 24″ printer could be done on a 36″ printer. Only a vanishingly small portion requires the full 44″ width.

I like the idea that this blog is a stealth marketing scheme. Really, that’s good. It’s wrong, of course, but it’s so fiendishly clever and so similar to the astroturfing idea in the political sphere that I think it will be just a short while before we see such things. There are probably sites like that now. And, while I assure you it isn’t the case here, can you really trust that statement? (cue: music from The X Files)

On the idea of compensation if I push some business toward HP – that’s a two edged sword. Does it meant that I also should have to cough up some dough to Epson, because I’ve driven business away from them?

Comments Off on Disclaimers

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. 

More on Droit de Suite

Posted in business, Droit de Suite, ethics, the art world by Paul Butzi on May 7, 2007

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Some interesting comments on the Droit de Suite post, here

If you write a book, you sell the right to publish that book to a publisher, you don’t sell them the book. If they reprint that book and charge a higher price, you get a better return. Or, if the original contract has expired and they want to reprint it, but another publisher has offered you a better deal, you can sell the rights to them. You’re not stuck at the original rate.

Sure, that’s a good plan.  And, of course, if the book doesn’t sell well, then the writer is taking the hit when the contract expires; the artist is taking all the risk of what happens when the contract expires, and is reaping all the rewards (or losses). 

Artists, even artists that produce one off works, could do pretty much the same thing – namely, they could lease work instead of selling it outright.  Then, when the lease term expires, they can adjust the rental rate.  They could either lease it to the same person, or lease it to someone else.  Problem solved.  Or, if they only want partial participation in profits, they could just sell shares in the work – say, sell 94 shares to the ‘new owner’, and retain 6 shares themselves.  When the artwork is resold, they would get 6% of any profit.  Of course, they would also have a 6% share in any losses.

If you’re a painter or a sculptor, each work is a one-time deal. If you sell one and it goes up in value, why shouldn’t you, the person who actually created the work, make at least some profit from its increased value?

There’s a simple reason why the artist shouldn’t make any profit from the increased value – it’s that they’re not taking on any of the risk.  The purchaser is taking on all of the risk associated with the future value of the work.  If the price rises, they get all the reward.  If the price falls, they take all of the loss.  The artist is taking on none of the risk, and thus shares neither in any potential profits nor in any potential losses.  As the promoters of lotteries keep telling us, if you don’t play, you can’t win.

…the seller did nothing except buy it and hold it.

A lot of artists suffer from the misconception that the buyer did nothing.  But, of course, the buyer DID do something – they exchanged money for the ownership of the work.  As a result, they’ve incurred what the financial world calls ‘opportunity cost’ – the value of the investment they could have made instead of buying the artwork.  Even if the only alternative was to buy a long term CD, they’d still be earning interest on that money.  Instead, they bought the artwork, they’re taking all the risk that it might decrease in value (a common outcome with art purchases) and thus they have the right to all the appreciated value. 

And, I’d point out, without that buyer, the artist is left with a very nice artwork that he can’t sell, and thus it has a value of zero.  Economists have a good way to thinking about a financial transaction – it’s that the way it works when no one is being coerced is that the seller gets the money, which they value more than they value what’s being sold.  And, of course, the buyer gets the thing being sold, which they want more than they want the money.  Both participants walk away with something they wanted more than what they had when they started.  Unsurprisingly, this theory explains a vast swath of human behavior.  It’s a very useful theory, because it so accurately predicts so much.

Artists would do well to study this theory.  They should study it because it’s much more useful than the Artist’s Fantasy Theory of Economics, which states that, in a just world, art buyers would grovel at the artist’s feet for the privilege of buying the artist’s work, would apologize for being wealthy enough to buy art, and would insist on paying more than the asking price as a token of their appreciation of the artist’s ongoing creative struggle.

The gallery did nothing except sell it. There’s no creative input in either of those activities (if something as passive as displaying something and saying, “Hey, wanna buy it?” can be called active). The artist, on the other hand, made it, and without that act of creation the other folks would have nothing to “do”.

Once the gallery has made the initial sale, they’re no longer involved and don’t get any profit from subsequent sales, so I’m not sure why they’re being discussed at all.  But the gallery quite clearly did something of value – they coordinated the sale.  If galleries don’t create value for artists, no one is holding a gun to the artist’s head and insisting that they do business with those galleries.  Lots of artists (me included) do direct sales instead.

Right now, I’m involved with a group of artists putting together a coop gallery to show and promote our work.  It’s an exercise I recommend for anyone who is suffering from the hallucination that galleries don’t do anything and don’t incur any costs while selling artwork.  Short incomplete list of just the overhead items: rent, paying staff to keep the gallery doors open, phone bills, printing costs for promo cards, paint to repaint walls, accountant’s fees, costs for wine and food at receptions, insurance to cover artwork while it hangs, B&O taxes, legal fees, web hosting fees, ISP costs.  The list just goes on, and on, and on.  Truly, the list would not only stun a stoat, it would stun a really, really hard to stun stoat.  If you were to find the stoat that, of all the stoats in the world, was hardest to stun, it would stun THAT stoat. 

As for the perception that the purchaser of the work and the gallery didn’t do anything ‘creative’ – once the artist has made the work, they haven’t done anything creative either.  And, while I realize that in Artist Fantasy Universe, no one is financially compensated for anything which is not extremely artistic and creative, in the real world people earn money all the time, deservedly, for doing things which are not very creative. 

Most artists don’t make a lot of money from their art. Even with “droit de suite” this is the case. France, crazy country that they are, figured that keeping artists eating keeps them creating art, thus keeping culture alive.

Enacting Droit de Suite legislation that affects sales of artwork that was initially sold BEFORE the legislation was enacted essentially grants artists a share in any potential profits (but no share in potential losses) and thus amounts to taking money out of art owners’ pockets and placing it directly in the pockets of artists.  Regardless of the nobility of the sentiment behind this, it is theft. 

If you don’t think so, imagine for a moment similar legislation which insisted that all artists must make up a part of any losses suffered by art purchasers, but didn’t give artists a share in potential profits.  Ah, I can hear the outrage now.

And, more to the point, there’s no evidence whatsoever that Droit de Suite actually ends up putting more money in the pockets of starving artists.  None.  What happens is that art buyers discount the future profits of any sales, and incorporate this discounting into the price they’re willing to pay.  So Droit de Suite just drives prices down, resulting in LESS up-front money in the artist’s pocket.  In the final analysis, what Droit de Suite does is take money OUT of the pockets of starving, emerging artists (because prices are depressed to offset the risk of Droit de Suite payments if the work appreciates) and moves it into the pockets of established, successful artists whose work is being resold (because only the work of established, famous artists ever gets resold, and on average, because the price discounting will be based on averages, but works which appreciate greatly will outperform the average).  There are people who think this is a grand plan, but I’m not one of them.

One other point, this one in response to your asking why the artist should share in the profit, but not the risk. Simple answer – the artist already took the risk, devoting, potentially, a large part of their life to creating the work.

Yes.  The artist took the risk of investing time, energy, and money in creating the work initially.  The compensation for this risk is reflected in the price of the first sale.  But specifically, the artist does not participate in any of the risk AFTER the sale, and thus does not participate in any of the reward, either.

Let me put it like this: once the artist has sold the work, ALL of the risk is borne by the purchaser, and there’s no possible scenario in which the artist can lose money as a result of price changes in the work that’s been sold.

Droit De Suite

Posted in business, Droit de Suite, ethics, the art world by Paul Butzi on May 3, 2007

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Supporting Droit du Suite is an example of how I think artists, as a group, are often delusional about how the marketplace works.  The basic idea of Droit de Suite is that an artist should get a share of any increase in value that occurs after the sale of an artwork.

Sometimes, someone buys an artwork, and then later sells it for a higher price than they bought it.  Without Droit de Suite, the profit of the sale goes to the person who bought the work and subsequently sold it.  If an artist sells an artwork for, say, $500, and then the buyer eventually sells it for, say, $50,000, the buyer nets a profit of $49,500, and the artist’s share of this profit is… zero.

Proponents of Droit de Suite say that’s not fair.  The artist did all the work, the buyer did nothing but hold the work for a while, and yet the artist gets nothing but the original $500 and the buyer gets $49,500.  Not fair, not fair!

So what Droit de Suite does is this: whenever an artwork is sold, the original artist gets a cut of the sale price (for example, in France, between 1% and 3% of the sale price goes to the artist).

So here are the problems I see with Droit de Suite:

  • In some implementations, the cut that the artist gets is based on the selling price, not the profit.  So every time the artwork changes hands, the artist gets paid.  Again.
  • Even in those cases where the artist only gets a share if there’s a profit, prices are not adjusted for inflation.  So if I bought a work for $1000 in 1970, and sell it for $2500 today, under Droit De Suite, the artist might get 3% of the sale, or $75.  This might seem fair, but in fact, after adjusting for inflation, the value of the work has actually declined – $1000 in 1970 dollars is about equivalent to $5300 in 2007 dollars.  So, in reality, there’s been no profit at all.  I’ve lost money on the sale, and the artist gets 3% anyway.  Raw deal for me, eh?  (in some places, proposed rules DO adjust for inflation, but that’s not the norm)
  • Prices are not adjusted for opportunity cost.  To really be fair, the profit should not only be adjusted to take into account losses due to inflation, but also the opportunity cost of having invested in the art.  In other words, if I buy treasury notes, I can expect a riskless rate of return of something like 4% after allowing for inflation.  The idea of Droit de Suite is to allow the artist to participate in gains due to increased market demand for his/her work, not to allow the artist a cut of the time value of money.  So the profit should be adjusted to take this into account, but isn’t.
  • Let’s suppose that you’re going to buy a three handled moss covered family credenza.  But the sales contract stipulates that, if you ever sell the credenza, the woodworker who made it will get 4% of the sale.  If you have half a clue, you factor this future loss of profit from a sale into the price you’re willing to pay.  The same will be true with paintings, sculpture, photographs – any art work.  In the end, Droit de Suite doesn’t put more money in the pocket of an artist, it just changes the time the money arrives and increases the risk.  A lower selling price today may or may not be worth a shot at a royalty later.  Remember, not every work of art is resold.

Are those the only economic arguments against Droit de Suite?  No.  The list is nearly endless.

But here’s the part that I think is most telling.  Droit de Suite insists that the artist get some of the positive advantage from the increase in the value of the work after he/she sells it.  If this is fair, then I think the artist has a responsibility to share in the loss if the work declines in value.

Why should the artist get to participate in the wins, but not be obligated to participate in the losses?