Anti-Flipping

‘Say It Loud (I’m Black and I’m Proud)’ is the title of a remarkable and unique online selling exhibition held by Christie’s from 21 July to 21 August 2020. Dedicated to the promotion of works by ‘22 young, emerging and mid-career artists from across Africa and its diaspora’, Christie’s was proud to say it that had ‘gone above and beyond to prevent buyers from flipping the works later for a profit’.

In a bold leap of imagination Christie’s not only tapped into the zeitgeist of Black Lives Matter, the art market’s general manoeuvring towards online exhibiting and selling because of physical distancing restrictions during the Covid-19 pandemic and James Brown’s 1969 black empowerment funk song title, but also used its own market strength to translate into action the spirit and intent of Brown’s lyric, ‘Brother we can’t quit until we get our share’.

To realise its objectives, Christie’s collaborated with the non-profit Harlem Arts Alliance organisation and Destinee Ross-

Sutton, a 24-year-old curator and art adviser. Raised in Harlem and still based in New York City, Ross-Sutton’s approach to working with Christie’s was influenced by her work supporting career development of artists from America and Africa. ‘It’s easy to be overwhelmed as a young artist,’ she says, ‘My job is to identify who is a serious collector and who is a flipper, and to ensure my artists are shown in spaces that benefit their careers … I grew up hearing all these stories of black rappers and singers who were taken advantage of by their managers, exploited by the people who claimed to have their interests at heart. You have to know your history and learn from it, and make sure it doesn’t happen again.’

In the event, Ross-Sutton became more disruptor than collaborator, persuading Christie’s to execute artists’ sales by requiring would-be purchasers (not bidders, since these were not public auction sales) to sign a written sales contract with terms and conditions reflecting Ross-Sutton’s ‘fair share’ mission: buyers would not resell the work at public auction for at least five years; if buyers wanted to resell, they would first offer to sell back to the artist (a so-called ‘right of first refusal’); and, if not resold to the artist, buyers would pay the artist 15% of any resale profit. By all accounts, every would-be purchaser (private and institutional)

willingly signed this conditional primary sales contract. Most works sold at prices ranging from $475 for a limited-edition print to $43,000 for a large canvas painting. ‘It’s basically been a feeding frenzy,’ Ross-Sutton said, ‘It’s encouraging that people [buyers] aren’t going radio silent when you send the [written] agreement.’

Clearly Ross-Sutton and Christie’s tackled the reality that relatively unknown artists are invariably powerless to persuade would-be buyers to accept sale contract restrictions on flipping/reselling. Thus, Christie’s acted as agent/dealer for a score of artists, using its leading worldwide reputation – and market power – to bring would-be buyers onside. And on the supply-side of this unique art business equation, Christie’s contracted with the artists to consign works for this exhibition and sale on condition that they would receive 100% of the proceeds of the (private, not public auction) sale of their work. Although it is unclear whether buyers paid a further separate premium to Christie’s (as a percentage of the actual sale price, as at public auction sales), even if so, Christie’s apparent altruism is commendable.

All in all, this is a positive artlaw story: win/win/win for artists, intermediary and purchasers. Ross-Sutton certainly hopes

so: ‘Many artists do not realise the power they have. We cannot only put the blame on these so-called flippers – artists have to be more discerning and so do galleries. If we enable this kind of behaviour by not putting into place certain preventive measures, we have to take some of the blame.’ Is this perhaps idealistic wishful thinking, or an original art business innovation?

It is a long-standing melancholy truism that the vast majority of artists have little or no bargaining power in the contemporary art world. Witness Marcel Duchamp’s 1957 assertion that ‘millions of artists create; only a few thousands are discussed or accepted by the spectator and many less again are consecrated by posterity’. Put another way, the laws of supply and demand dictate that the contemporary art world is dominated by a relatively small number of institutional gatekeepers and art-market professionals and buyers, compared with a vast number of artists and works from which to choose to value or acquire or trade.

Moreover, for the past century or more artists have worked (alone and collectively) to find solutions to their endemic powerlessness – not only to prevent first/studio sales inevitably being bought for the lowest prices, but also to receive a fair share of higher prices from all subsequent resales. As a result of such experiences by artists in late-19th-century France, a ‘Law of 20

May 1920’ was enacted giving artists an automatic legal right to receive a small share of the price (not profit) of all resales of their works at auction in France: this droit de suite (right to follow) endured for an artist’s lifetime plus decades after death (to benefit the artist’s descendants). A key driver of this legislative innovation was the fact that even if artists’ agents/dealers persuaded buyers to sign sale contracts agreeing to pay artists a share of resale prices, such contractual obligations applied only to first buyers’ resales and not to further re-buyers.

Droit de Suite/Artist’s Resale Right laws have now been enacted by over 80 countries worldwide, including the EU (UK’s own legislation will continue to operate post-Brexit). The US, however, has no such federal legislation, which is why for the past five decades US artists have tried to achieve a fair share of resale profits via contractual restrictions with first buyers: notably The Artist’s Reserved Rights Transfer And Sale Agreement drafted by dealer/curator Seth Siegelaub and lawyer Robert Projansky in 1971 (Interview AM327 and AM328); and its recent revision by lawyer Laurence Eisenstein commissioned by the non-profit Kadist contemporary art organisation. Few if any buyers ever signed the 1971 version, and it is highly unlikely that many will sign its latest revision.

Nevertheless, all buyers have signed Say It Loud’s anti-flipping sales contract. And so, even in countries where artist’s resale right legislation does operate, artists and/or their agents/dealers might consider including in their first/studio sale contracts beneficial anti-flipping conditions – like Ross-Sutton’s restrictions on reselling for five years, and/or the artist’s right to buy back. Such contractual conditions are increasingly included in primary sale contracts of artists whose works do command high secondary market values.

© Henry Lydiate 2020

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.