While secondary market royalties are becoming standard in European countries, the fight wages on in the United States. On one hand, it is the hallmark of free capitalism to sell anything you want anytime for any amount of profit, on the other hand, this is undeniably unfortunate for artists whose works are flipped or taken out of the public and relegated to a quickly appreciating asset hidden in bunker-like art storage. So, do artists deserve secondary market royalties? How could we go about instituting this?
The news that, in a week of contemporary-art auctions that saw more than a billion dollars’ worth of art sold, the record for the price of a single work sold at auction had once again been broken—this time, with a hundred and seventy-nine million dollars spent on a so-so Picasso, from his just-O.K. later period—couldn’t help sending some observers, with what is technically called hollow laughter, back to 1980 and the conclusion of Robert Hughes’s great synoptic history of modern art, “The Shock of the New.” There Hughes wondered at how a “spiralling market” had made for “a brutalized culture of unfulfillable desire,” producing auction prices that had seen “a mediocre Picasso from 1923” sell for three million dollars. Yesterday’s outrage becomes yesterday’s bargain, as the price spiral extends, upward and outward, with no end in sight.
Two arguments arise from such events: one mostly moral, the other largely legal. The moral issue is about what rising prices can do to our feelings about pictures. For good or ill, some idea of money has always been constitutive to our idea of art. Whatever Phidias or Praxiteles did it for, it wasn’t the naches. The intertwining of art and money has even been part of the positive character of the modern age, when artists fought free of princely and church commissions, and began to paint pictures intended for sale in a free market of collectors. What would a sane, well-ordered art market look like? What is a so-so Picasso really worth? Who knows? Markets are designed to make their own rationality. Where people put their cash reflects what they think and desire. That is why we have auctions.
At the beginning of the twentieth century, as S. N. Behrman documented in these pages, in his famous Profile of the art dealer Joseph Duveen, the same kind of inflationary bubble afflicted the world of Old Master art. The most striking thing about the current craze is that the Old Masters are among the least affected. The rising tide of money has elevated the resale value of contemporary art and the work of living artists sometimes close to the level of that of the distinguished dead—though, like the dead, they don’t make money from the resale. And so a movement has got under way, led by Jerrold Nadler, who represents a chunk of this city in Congress, to give artists and their estates a royalty, capped at thirty-five thousand dollars, when their work is resold at a large auction house. It’s a complex issue. Copyright law is called copyright law because it is meant to be concerned with the problem of copies. Since books and records can be copied freely (as, indeed, they are, online), we impose a royalty on the copyist in order to insure that the originator isn’t cheated for his labor. The deal that visual artists typically make with their buyers is different: the artist sells the original and reaps the benefit. The logic here is that if the owner of a Jeff Koons sells it at auction for a profit, that will be reflected in the next Koons that Jeff Koons makes; the “royalty” that he reaps is the increase in the value of his next work of art, sold to the next individual buyer.
Yet the idea of paying royalties to artists probably still resonates emotionally with most of us. That’s because what distinguishes a work of visual art is not merely that it passes through many hands, increasing or losing value as it does, but that it is made by a singular hand (or, at any rate, comes from a singular vision), whose claim on it lingers, even after it changes owners. A work by Chuck Close can be a wall decoration, an investment, a legacy, and a tax deduction, but, before it is any of these, it is, and remains, a Chuck Close. That’s why the French doctrine of “moral right,” which holds that an artist has the right to guarantee her work’s integrity even when she no longer owns it, seems to us both moral and right: if you possess an artist’s painting, you can’t deface it or mutilate it or alter it without the artist’s consent. Essentially, what artists are asking for, through Nadler’s bill, is little more than the courtesy of a tip. The counter-argument is that a good chef is rewarded not with tips but with a better job in a richer kitchen, but our moral intuition tells us that he deserves one, especially if his dish is still mysteriously delicious years after he first served it.
*Image of Jeff Koons via Forbes