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Artist studio contracts and invoices for artwork sales that include Artist Resale Right ARR or Droit de Suite

Author: Distil Ennui | Post Date: 15-03-2021

Many years ago the studio started to apply Artist Resale Rights or Droit de suite terms into all artwork sales documentation, at the time there was a lot of resistance from galleries, dealers and clients alike mainly due to lack of information and ignorance about the system. 10 years later it is still in the studio formulae, here I will explain the reasoning and format used.

Which artists qualify for ARR?

Qualifying artists are nationals of an EEA (European Economic Area) country: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France (including Monaco), Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom (not Channel Islands for VAT).

 

What is the definition of a work of art under these regulations?

Any work of graphic or plastic art such as a picture, a collage, a painting, a drawing, an engraving, a print, a lithograph, a sculpture, a tapestry, a ceramic, an item of glassware or a photograph. However, a copy of a work is not to be regarded as a work unless the copy is one of a limited number which have been made by the author or under the artist's authority. e.g., a series of numbered prints. 

 

A little history lesson....

In what would become the first scandalously record-breaking Sotheby’s art auction in 1973, taxi magnate Robert Scull and his wife famously made a fortune on 50 artworks from their collection, which included Robert Rauschenberg’s painting 'Thaw'. There, the artist watched as his piece, which he had initially sold for $900, only a few years later hammered out for a whopping $85,000. As the story goes, Rauschenberg famously shoved Scull and shouted something along the lines of: “I’ve been working my ass off just for you to make that profit!”. Rauschenberg didn’t see a dime from that auction; unlike authors and composers, American artists get no cut of their future sales.

 

This is because U.S. copyright law protects “published” works, and a work of art is not “published,” simply made and sold—so once a work of art is out of an artist’s hands, the future profits, too, are gone. This system is unique to the art world; in other fields, artists are understood to have the right to a share of the proceeds of their works long after the works are first made. It makes perfect sense, for example, that the Isley Brothers would keep making royalties off “Shout,” even though it wasn’t a chart-topper when they released it in 1959 (it didn’t become iconic until it was featured in Animal House in 1978), or that Joan Didion would keep collecting money off "Slouching Towards Bethlehem", which was published when she was 34, before her legend was secure. In the music world, a minor scandal arose when Chuck Berry was cheated out of his royalty rights for “Maybellene.” In the art world, everybody is Chuck Berry. …

 

The fact is that Artist Resale Right is set in law within the geographic locations set out above, so it seems fair and reasonable to set those terms out in the provenance paperwork for an artworks sale. Here are the terms we apply to sales documentation, which benefits the artist or the artists estate after their death. The artist's resale right (ARR), is so important. it provides artists with vital income that is merely related to their clients profits - not a penalty in any way. This enables artists to continue creating works, and supports artists' estates by helping them to preserve their legacy long after the artist's death.

TERMS AND CONDITIONS OF SALE

 

1.    In accordance with the provisions of sections 77 to 85 of the Copyrights, Design and Patents Act 1988, the Artist hereby asserts his moral rights, including without limitation, the right to be identified as the author of the Work and the right to object to derogatory presentation or treatment of his Work.
 

 

2.    The Buyer warrants to the Artist that the Buyer shall handle the Work with reasonable care and the Buyer shall not intentionally alter, damage, copy, commercially exploit, license, duplicate, or destroy the Work.
 

 

3.    In the event that the Buyer wishes to resell the Work, the Buyer shall immediately inform the Artist (by email to Info at DistilEnnui.com) if such resale is within a period of five (5) years of the date of this Agreement. The Artist shall have the right of first refusal to purchase the Work at the current market price (“Option”) for a period of [thirty (30)] days from the date of the Buyer’s notification of his/her intention to sell the Work (“Option Period”).
 

 

4.    In the event that the Buyer and the Artist cannot agree a fee for the Work within the Option Period or if the Artist fails to or decides not to exercise its Option, the Buyer may resell the Work to any other person or institution.
 

 

5.    The Artist’s Resale Right Regulations 2006 (the “Regulations”) provides that an artist is entitled to be paid a royalty (4% of sale value from £0-£50,000) on each resale of the artist’s work under the regulations of (“Droit de Suite (Artist’s Resale Right)”). Therefore, in the event that the Work is subject to Droit de Suite (Artist’s Resale Right), the Artist will be entitled to the royalty payment and the Buyer agrees to pay the applicable royalty as set out under the Regulations to the Artist unless otherwise notified. For the avoidance of doubt, the Buyer shall be fully discharged of its obligations to the Artist in relation to the Droit de Suite (Artist’s Resale Right) on receipt by the Artist of such royalty payment from the Buyer.
 

 

6.    This Agreement shall be governed by and construed according to the laws of England and the parties hereto irrevocably submit to the non-exclusive jurisdiction of the English courts.

 

a personal note from Alexander..

The artist's resale right, is very important to safeguarding your investment in my work. It provides artists with vital income that is only related to a minimal amount from any future gallery or auction house profits achieved by selling this work - it is not a penalty in any way. This enables all artists to continue creating works, and supports artists' estates by helping them to preserve their legacy long after the artist's death. if you have any questions about this please email info at DistilEnnui.com.

Thank you for your continued support and understanding

signed Alexander James Hamilton.

 

For more information on artist resale rights please visit….

www.DACS.org.uk and www.ArtistsCollectingSociety.org

 

 

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