Artists perpetuity contract
Peter H.M. Brooks
was a South African artist who had an interesting life and a variable
output, sometimes very good, sometimes substandard and pornographic. He was,
for a time, Professor of Art at the University of Natal in Pietermaritzburg
(I met him there first). He lost his job as Professor not just for doing
nude body casts, but for being featured making these casts in 'Scope'
magazine, the most risque magazine allowed by the heavy apartheid
legislation at the time.
He died in fairly miserable poverty in sordid circumstances. He had been
through a bad patch some years ago, but had made good and sold a lot of his
paintings. Sadly the success led to his downfall, too much money, too
suddenly led him to an excessive lifestyle that ultimately killed him.
This was all very sad, but not an unsual end for an artist.
It led me to think again how the lives of painters and sculptors could be
less erratic (having more stable finances) if their work was sold in a way
more similar to the way musicians and authors sell their art.
My idea is quite simple. Any artist could sell their paintings under a
perpetuity contract. This would, as usual, vest the copyright with the
artist, however, it would also have a clause requiring the owner, and all
subsequent owners, to remit a persentage of the sale price (say 5%) to the
artist, or his estate, every time the work was sold. This would be a small
imposition on the owner, given the huge percentages charged by auction
houses and galleries, but, if the work appreciated in value it could provide
an artist with a pension and a living wage even if his output had declinded
in quality and/or volume in later life.
The way I would see it working is simple. A work shown at a gallery for sale
at $20,000 would have a note saying that it could be bought at $12,000 if
the buyer signed a perpetuity contract. This discount might provide an
incentive - after all the seller would only have to factor it into the sale
price to make the return that he wanted once it was sold.
Of course, like any long term contract, it might be difficult to police,
but, if the work showed up later at an auction and, say, sold for $300,000,
then the artist would have a contract that enabled him to claim the 5% of
this price at that time - even if previous sales had been made in private.
This seems to me a fair contract and one that might indeed increase the
overall value of art in the long term, but that, in itself would not be a
bad thing.
If people objected to such a contract then, at the initial sale, there would
be the obvious option of paying the higher price to be free of the contract.
I have posted this to some legal groups as well as to groups who would be
interested in the just treatment of artists and I'd be interested to hear
any ideas related to this.
It would be interesting to know what form of words, in broad terms, that
would be necessary to make such a contract work internationally in practice.
I don't really see how this would do anything more than produce a return as
just as that that an author has when royalties accrue many years after the
book has been sold to the publisher.
--
"As we know there are known knowns. There are things we know we know. We
also know there are known unknowns. That is to say we know there are some
things we do not know. But there are also unknown unknowns, the ones we
don't know we don't know." - Donald Rumpfield, Killer in chief
Peter H.M. Brooks
contract that I had in mind. Please, any lawyers or others, tear apart
anything that might not work!
Perpetuity Contract
I __________ of __________ on this day of ___________ 20__ (the purchaser)
have agreed to purchase the work of art ('art work') known as
_______________ identified by the mark/number/tag ___________ from
The artist ____________________ under the following perpetuity contract for
a consideration of ______. The terms of the contract are as follows:
1.. The copyright of the work will vest with the artist and his estate for
the statutory period.
2.. If the artwork changes hands the artist, or his estate, will be
entitled to 5% consideration of the value of the work at that time. This
will be calculated by the sale or auction price or, if it exchanges hands in
any other way, by the higher of two independent valuations of the work.
3.. This contract is governed primarily by the laws of the country in
which the artwork is now sold __________ or, in the case of dispute, by the
country in which the work at that time resides, or any country that the
artist elects at that time to govern the exercise of this contract.
4.. No contract, agreement, verbal, written or otherwise shall be deemed
to override this contract under any circumstances whatsoever.
5.. The purchaser agrees to inform the artist should the work be
destroyed.
6.. The purchaser agrees to inform the artist should the work be stolen.
7.. The artist agrees to keep his current contact information, or that of
his agent, current at the web-site http://www.artperptuity.com/ or at
another place as agreed and published from time to time as a repository of
provenance and artist contacts.
8.. The artist agrees to keep a record of the actual provenance of the
work and to publish this at the above (or another mutually agreed central
site). This provenance may be a reference to an anonymous owner if this is
desired by the current, or a future, purchaser, but must be available to the
artist in order to recover the consideration defined in article 2 of this
contract.
9.. Any party involved in transferring ownership in any way whatsoever
will be governed by this contract and liable for the consideration defined
in article 2 as well as any costs incurred in establishing the location of
the art work, establishing its identity, recovering due considerations for
previous transfers of ownership if not paid and recovering the actual
consideration of the current transfer. This also includes the cost of
establishing the legality of this contract and the provenance of the art
work at any future time.
10.. The estate of the artist will be identified, on the death of the
artist, at the above location or one generally agreed to be equivalent under
the terms of the global perpetuity clause.
Peter H.M. Brooks
posting:
Perpetuity Contract
I __________ of __________ identification ____________ on this day of
___________ 20__ (the purchaser) have agreed to purchase the work of art
('art work') known as _______________ identified by the mark/number/tag
___________ from the artist ____________________ under the following
perpetuity contract for ______. The terms of the contract are as follows:
1.. The copyright of the work will vest with the artist and his estate for
the statutory period of the country in which the most recent sale takes
place.
2.. If the artwork changes hands the artist, or his estate, will be
entitled to 5% consideration of the value of the work at that time. This
will be calculated by the actual sale or auction price or, if it exchanges
hands in any other way, by the higher of two independent, as agreed by the
artist, valuations of the work.
3.. This contract is governed primarily by the laws of the country in
which the artwork is sold __________ or, in the case of dispute, by the
country in which the work at that time resides, or any country that the
artist elects at that time to govern the exercise of this contract.
4.. No contract, agreement, verbal, written or otherwise shall be deemed
to override this contract under any circumstances whatsoever.
5.. The purchaser agrees to inform the artist should the work be
destroyed, stolen or in any other way lost.
6.. The artist agrees to keep his current contact information, or that of
his agent, current at the web-site http://www.artperptuity.com/ or at
another place as agreed and published from time to time as a repository of
provenance and artist contacts.
7.. The artist agrees to keep a record of the actual provenance of the
work and to publish this at the above (or another published central site).
This provenance may be a reference to an anonymous owner if this is desired
by the current, or a future, purchaser, but must be available to the artist
in order to recover the consideration defined in article 2 of this contract.
8.. Any party involved in transferring ownership in any way whatsoever
will be governed by this contract and liable for the consideration defined
in article 2 as well as any costs incurred in establishing the location of
the art work, establishing its identity, recovering due considerations for
previous transfers of ownership if not paid and recovering the actual
consideration of the current transfer. This also includes the cost of
establishing the legality of this contract and the provenance of the art
work at any future time.
9.. The estate of the artist will be identified, on the death of the
artist, at the above location or one generally agreed to be equivalent under
the terms of the perpetuity clause.
10.. The moment an actual transfer of ownership, through sale, probate,
seizure, attachment, recovery of stolen goods, binding promise, trust, or
any other means of transfer the previous owner becomes liable for the
consideration and the new owner comes under the terms of this agreement.
Signed:
The Artist: The
Purchaser:
Flying_Naked_People
> My idea is quite simple. Any artist could sell their paintings under a
> perpetuity contract. This would, as usual, vest the copyright with the
> artist, however, it would also have a clause requiring the owner, and all
> subsequent owners, to remit a persentage of the sale price (say 5%) to the
> artist, or his estate, every time the work was sold.
Not a new idea. This is standard in professional sale contracts - esp. in
California, USA... though I doubt it is easy to enforce.
Flying_Naked_People
Erik A. Mattila
Peter, take a look at the "California Resale Royalties Act." I believe
New York state has similar legislation. Ironically, very few artist use
it, because of the document burden it creates at the point of sale.
http://www.ivanhoffman.com/crra.html
http://boo-mda01.boo.net/artlaws/detstore.htm?refID=0&formnum=7006
This is a good model for what you are talking about, at any rate. The
history (and those who whine a lot about government subsidies of the
arts should think about this) was that federal and state funding allowed
the Bay Area Lawyers for Artists group to function in the late
seventies, and this is one of their major projects.
Erik
Peter H.M. Brooks
"Flying_Naked_People" <http://www.rcip.com/nerdgerl> wrote in message
news:vf6vuu4...@corp.supernews.com...
that, though, is not a reason not to do it!
As far as I know most art in the world today is sold without such a
contract - that is the issue.
--
The American President is a coward who was at the head of a venal and
corrupt administration. This really is a completely unsupportable government
and I look forward to it being overthrown as much as I looked forward to
Saddam Hussein being overthrown. - Ken Livingstone
Peter H.M. Brooks
> http://www.rcip.com/nerdgerl/ARTSALE2.doc
>
Thank you for posting that - actually I saw it a while ago when I looked at
your site.
That contract is good in that it allows you to borrow the work and makes
provision for a 'residual' in the case of a profit it doesn't actually go
far enough to establish what that 'residual' might be. Somebody would be in
complete complience with your contract if they gave you $5 when they sold it
for a profit of $5000,000. Not only that, but it makes no provision for
transfers under trust or other agreement. You could sell a work to a company
that was taken over by another company, then you would get nothing and would
have no right to know of the change of ownership. Under the contract I
propose you would.
I do like the wording, though, particularly the point about keeping a
relationship with the work. Even though this wouldn't work with your estate
it does provide another good leg for the argument that you should be
compensated for future transfers.
I like the idea of a central repository for provenance. I don't know who
would fund it but there are many bodies who would benefit (Christies,
Bonhams, Moma, ... it goes on) so, if this became a movement then the funds
should be there.
--
Dulce et decorum est prope mare sedere boglatin for it is a sweet and seemly
thing to sit down by the sea - J Joyce Let. 20 May (1957) 254
Peter H.M. Brooks
"Erik A. Mattila" <emat...@oco.net> wrote in message
news:3EF383CF...@oco.net...
> Peter H.M. Brooks wrote:
>
> Peter, take a look at the "California Resale Royalties Act." I believe
> New York state has similar legislation. Ironically, very few artist use
> it, because of the document burden it creates at the point of sale.
>
> http://www.ivanhoffman.com/crra.html
> http://boo-mda01.boo.net/artlaws/detstore.htm?refID=0&formnum=7006
>
> This is a good model for what you are talking about, at any rate. The
> history (and those who whine a lot about government subsidies of the
> arts should think about this) was that federal and state funding allowed
> the Bay Area Lawyers for Artists group to function in the late
> seventies, and this is one of their major projects.
>
(even to the 5%!). However, it only applies to California. I would like a
contract that applied world wide. Also it makes no provision for the estate
of the artist, something that I also think important. Enforcement is through
the seller, which is fine, however it does mean that a sellor of an art work
would find it more attractive to go to Arizona (or somewhere else where the
contract did not apply).
I like the idea of a contract that the artist can use as a negotiating tool
(artists tend to be at the weaker end of the negotiation) to either reduce
the price of apply the world wide contract.
As I said too, I think it would be good if there was a universally agreed
means to establish provenance - it can't be done for all the art in the past
(at least not at once!), but it can provide a way forward for all artists
(even impoverished third world artists).
Actually I see that this could benefit poor third world artists very much.
Say somebody buys a sculpture in Benin for $5, takes it back to the US and
sells it for $5000 then, under this agreement the artist in Benin could get
the huge (to him) sum of $250. Of course he would have to know about and
enforce the contract.
Over time I would hope that the contract would be assumed and, as in
California law, the assumption would be that there was such a contract
unless the seller could prove that there was a contract to exclude this.
Flying_Naked_People
somewhere and downloaded it. (2) The contract is a "Word" document - meaning
you may certainly change it to fit your needs before it is signed in blood.
Living in or dealing in California is irrelevant really, and a "movement"
certainly is not necessary. A contract is a legal document regardless of where
you live.
In article <bd00ml$c12$1...@ctb-nnrp2.saix.net>, you say...
Flying_Naked_People
> Peter H.M. Brooks wrote:
>
> Peter, take a look at the "California Resale Royalties Act." I believe
> New York state has similar legislation. Ironically, very few artist use
> it, because of the document burden it creates at the point of sale.
Artists should be so lucky to have this "burden," as it provides legitimate
provenance records.
> http://www.ivanhoffman.com/crra.html
> http://boo-mda01.boo.net/artlaws/detstore.htm?refID=0&formnum=7006
>
> This is a good model for what you are talking about, at any rate. The
> history (and those who whine a lot about government subsidies of the
> arts should think about this) was that federal and state funding allowed
> the Bay Area Lawyers for Artists group to function in the late
> seventies, and this is one of their major projects.
>
> Erik
Peter H.M. Brooks
> 2 quick points: (1) I didn't write that contract - I found it on a website
> somewhere and downloaded it. (2) The contract is a "Word" document -
meaning
> you may certainly change it to fit your needs before it is signed in
blood.
>
>
> Living in or dealing in California is irrelevant really, and a "movement"
> certainly is not necessary. A contract is a legal document regardless of
where
> you live.
>
what ever other term you wish to use) is simply that for something to be
come the norm it requires widespread acceptance by the buyers (something
that is not quite the case with music at the moment as a result of abuse by
the music industry, for example).
--
Judges are known for making extreme antediluvian remarks from time to time,
their being dressed as Ark stevedores only encourages this anachronistic
playing to the gallery.- recommendations on judical attire
Peter H.M. Brooks
> In article <3EF383CF...@oco.net>, emat...@oco.net says...
> > Peter H.M. Brooks wrote:
> >
> > Peter, take a look at the "California Resale Royalties Act." I believe
> > New York state has similar legislation. Ironically, very few artist use
> > it, because of the document burden it creates at the point of sale.
>
> Artists should be so lucky to have this "burden," as it provides
legitimate
> provenance records.
>
>
understand what they are losing then they'll throw it away.
--
The decades-long debate over the consistency of personality and the
existense of character traits has now been settled. - Race, Evolution and
Behavour p22 J. Phillippe Rushton 1995
Flying_Naked_People
I was thinking what could be the best way to keep up with something like this.
I figured the artist should hire the services of a news clipper. That way, if
the purchase becomes significant enough, at least the artist could track it
through the news. Lol
gerberk
> also know there are known unknowns. That is to say we know there are some
> things we do not know. But there are also unknown unknowns, the ones we
> don't know we don't know." - Donald Rumpfield, Killer in chief
>
Hey that is a great quote .I doubt if Rumsfeld can think of anything as
intelligent as that.
.>But there are also unknown unknowns, the ones we
> don't know we don't know.
And these are the ones that disturb people the most probably.
regards
Alex Threlfall
<http://www.rcip.com/nerdgerl> says...
<messageid> header? Makes it rather hard to follow the thread as every
time you post it goes under the main part of the message, not under the
reply...
--
Alex Threlfall - Cyberprog New Media
Computer Hardware | Web Hosting | Software Development
www.cyberprog.com | www.cyberprog.net | www.cyberprog.co.uk
Dave
What other entrepeneur expects the public to assist in ensuring his loang
term finacial stability?
For fucks sake, each entrepeneur must ensure that he covers himself for the
fat and the lean times, just like I do as an engineer.
Peter H.M. Brooks
"Dave" <da...@mweb.co.za> wrote in message
news:bd3djo$h69$1...@news1.kornet.net...
>
>
> What other entrepeneur expects the public to assist in ensuring his loang
> term finacial stability?
>
methods to license their intellectual property or extract royalties from it.
You may not be aware of it, but every time you borrow a book from the
library a fee is paid to the author - in principle anyway, the actual method
used is a bit more complicated.
The makers of films also get money every time a film is shown.
You can argue that all of the above people are simply wicked profiteers who
ought to make some better provision. This has indeed been argued - more
against record companies who profit hugely as middlemen than against the
artists themselves, but it has been argued. Alternatively you could argue
that your intellectual property as an engineer (though this term covers a
huge range of possible options) ought also to attract usage fees rather than
one off payment - a toll bridge, for example, could pay a fee to the
engineers responsible for its construction, they are certainly held to
account if it falls down.
Peter H.M. Brooks
> term finacial stability?
>
they not only make money for their entire lives, but also for their
childrens. The system of selling property in the UK known as 'leasehold'
means that the same owner, or his descendents, can sell the same property
again and again - every 50 or 100 years.
Seagull Manager
The kind of thing you're suggesting has been entrenched in the law of some
European countries for a long while, and recently came to be applied
throughout the EU. When a work is resold, the artist is entitled to collect
a percentage. This principle is known as "droit de suite". There was a fuss
about the introduction of such a regulation in the UK, with auction houses,
which are much bigger than those of mainland Europe, claiming that sellers
would choose to sell in New York instead of London, causing the UK art
market to lose out. (They forgot to mention that New York State has some
similar regulations.) Of course, like most scare stories, it didn't happen.
Here's a news link:
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/07/25/wart25.xml
Here's a link giving indications that the idea of "droit de suite" is
spreading worldwide:
Peter H.M. Brooks
"Seagull Manager" <seagull...@afang.nospamthanks.demon.co.uk> wrote in
message news:bd4064$8sh$1$830f...@news.demon.co.uk...
>
>
> The kind of thing you're suggesting has been entrenched in the law of some
> European countries for a long while, and recently came to be applied
> throughout the EU. When a work is resold, the artist is entitled to
collect
> a percentage. This principle is known as "droit de suite". There was a
fuss
> about the introduction of such a regulation in the UK, with auction
houses,
> which are much bigger than those of mainland Europe, claiming that sellers
> would choose to sell in New York instead of London, causing the UK art
> market to lose out. (They forgot to mention that New York State has some
> similar regulations.) Of course, like most scare stories, it didn't
happen.
>
Of course the problem is that, if this is governed only by the country, not
a contact, then sellers can evade it by going to countries where it is not
in force.
>
> Here's a news link:
>
> http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/07/25/wart25.xml
>
> Here's a link giving indications that the idea of "droit de suite" is
> spreading worldwide:
>
> http://www.europeanvisualartists.org/page2.html
>
That is good news.
Seagull Manager
"Flying_Naked_People" <http://www.rcip.com/nerdgerl> wrote in message
news:vf78bn6...@corp.supernews.com...
> > Peter H.M. Brooks wrote:
> >
> > Peter, take a look at the "California Resale Royalties Act." I believe
> > New York state has similar legislation. Ironically, very few artist use
> > it, because of the document burden it creates at the point of sale.
>
> Artists should be so lucky to have this "burden," as it provides
legitimate
> provenance records.
Not sure why this should matter much to artists. Any doubt about provenance
is a problem for buyers and sellers, rather than the originator of a piece.
Seagull Manager
"Peter H.M. Brooks" <pe...@new.co.za> wrote in message
news:bd40bq$hcg$1...@ctb-nnrp2.saix.net...
>
> That is good news.
Not everyone thinks so, though:
http://edition.cnn.com/2001/WORLD/europe/07/03/artists.royalties/
Peter H.M. Brooks
fuss. All that would need to happen would be for, say, .5% of the royalties
to go to a central fund to help all artists. Then there'd be the nice
political battle about who was worthy to be funded by this central pool.
Why an elite of artists shouldn't benefit financially from their success is
quite beyond me. In the long term it would benefit art as more people would
take it up in the hope of doing well - rather than as is currently the case
that it is seen as something of a lottery.
Not only that, but I don't see why, for example, it would have been wrong
for van Gogh's estate to benefit from the sale of his paintings after his
death.
For artist's estates to benefit would deal with the rather unpleasant glee
with which collectors like to see an oeuvre closed by the death of a
painter, knowing that a closed oeuvre will appreciate - at least now
relatives and other beneficiaries would have a return from this profit on
death.
Peter H.M. Brooks
provenance is important to the artist to be sure that due payments were not
fraudulently witheld. Even without this it is important if there are
multiple forgeries of the artist's work - for they will reduce the value of
current sales by the artist.
--
Steve Hayes
Entrepreneur?
Sounds like my son's graduation from Pretoria Technikon a few months ago,
where one of the geezers proudly mentionioned in his speech that Pretoria
Technikon was the first tertiary institution in the world to mention
"entrepreneurship" in its "mission stagtement".
My son, and most of the other graduates, were getting gegrees or dimplomas in
fine arts, and at the end the lights went down, and spotlites were shone on
the graduates whil a little religious ceremony took place - a recorded voice
declaimed the "Entrepreneur's Creed" (or something of that sort.
It was the ultimate in kitch -- and graduates in fine arts who couldn't
recognise kitch would not deserve their degree. The academic aparatchik who
made the speech doubtless did not realise the irony of the situation.
Steve Hayes
http://www.geocities.com/Athens/7734/stevesig.htm
Steve Hayes
Erik A. Mattila
> In article <3EF383CF...@oco.net>, emat...@oco.net says...
>
>>Peter H.M. Brooks wrote:
>>
>>Peter, take a look at the "California Resale Royalties Act." I believe
>>New York state has similar legislation. Ironically, very few artist use
>>it, because of the document burden it creates at the point of sale.
>
>
> Artists should be so lucky to have this "burden," as it provides legitimate
> provenance records.
Yea, verily. So it is written. I agree -Erik
Erik A. Mattila
> "Dave" <da...@mweb.co.za> wrote in message
> news:bd3djo$h69$1...@news1.kornet.net...
>
>>What other entrepeneur expects the public to assist in ensuring his loang
>>term finacial stability?
>>
>
> Oh, yes, I ought also to mention that some people set up contracts where
> they not only make money for their entire lives, but also for their
> childrens. The system of selling property in the UK known as 'leasehold'
> means that the same owner, or his descendents, can sell the same property
> again and again - every 50 or 100 years.
Not to mention the long term financial stability issuing to patent and
copyright holders. I can't image why someone would consider this
"bullshit" - other than an art dealer, that is, who would keep the 5%
royalty (or whatever it might be).
Erik