Listen to me baby
Wherever you may be
I’m beggin’ over the radio
Please come back to me –
I’ve got a mind
To move on down the line. *
Many artists and galleries find great difficulty in tracing work which has been sold, lost, lent or given away – as unlike many other art forms – Visual art usually exists in a first and final form which leaves the artist’s hands forever.
Many artists and galleries find great difficulty in tracing work which has been sold, lost, lent or given away. This can be a problem not only when trying to borrow such work for retrospectives and other exhibitions, but also when trying to gain access to work for reproduction, copyright royalty, re-sale royalty and other legitimate purposes – even when simply trying to have another look at the work.
Visual art usually exists in a first and final form which leaves the artist’s hands forever, unlike many other art forms. Music, for example, is usually first created on a master tape or manuscript kept by the author, and the unauthorised reproduction of it is policed and its royalties are collected for artists by the Performing Rights Society and the Mechanical-Copyright Protection Society, through a network of international agencies. Sadly, there are no equivalent facilities for visual art in this country. Even without an international tracing network, there is still much that can be done to give substance to what may otherwise be an unreal and illusory umbilical-cord between artists and their art.
Work is usually disposed of in four ways: studio sales, studio gifts, gallery/ agency sales and at auction; thereafter, the latter two methods, plus further private sales, may take place (and any combination of them) to further complicate the issue.
Fred Piccasso privately agrees to sell a work for £500 to Stanley Krugerand: Fred has no gallery/agency deal; Stan is a private collector. There is no written contract or bill of sale: Stan pays £300 cash, takes the piece and promises to pay the balance in a month.
Is there a legal contract? (Those who say ‘No’ go directly to Jail, do not pass ‘Go’, but do pick up a copy of Henry Lydiate’s Collected Artlaw Articles from the Artlaw office on the way.) The answer is Yes.
Has Fred sold his copyright to Stan? No. (If you say Yes, go directly to Jail.) But if Fred subsequently wants to have access to the work to copy it, prevent Stan from copying, altering or even destroying it, he’ll have a devil of a job – especially if Stan’s identity and address aren’t known.
Can Fred borrow it back for exhibition purposes? No, unless Stan (if he can be traced) gives permission, which he may only do for a fee.
What can Fred do if his income tax inspector subsequently assesses him for tax on this sale, on the basis that it was sold for £1,000 (because Stan has falsely told the inspector that he paid £1,000 on his tax-deductible expenditure claim form)? Does Fred swear blind that he sold it for only £500? Of course, but he can’t be certain of proving it.
What if Stan never pays the balance of £200? Again, there’s no proof that the sale ever took place or that the selling price was £500. But, you may say, there was a legal contract: indeed there was, but without written proof it’s hardly worth the brick wall it was spoken to.
He’s off again, I hear you say: afraid so. Another precaution many artists take is to make a transparency of each piece as soon as it’s been made, and always before letting it go. When the copy has been made, it is glass-mounted and the frame is indelibly marked with the copyright symbol (© Artist 1981); then it is catalogued and safely filed away, never to be allowed into anyone else’s possession. Second copies are also made in the same way for others to use, but only with written confirmation of the terms for borrowing and arrangements for safe return. Of course, had Fred used a written contract or bill of sale, he could far more easily and certainly have enforced his copyright, had access to the work, borrowed it back and so on.
Fred Picasso privately gives a piece to Ron Braque: Fred has no gallery/agency deal; Ron is a private collector. There is no written evidence of the gift.
Has Fred also given Ron the copyright; can he borrow the work back; can he satisfy his tax inspector that the ‘gift’ was not in fact a ‘sale’ or ‘barter’; what if Ron sells the piece against Fred’s wishes and at a price which Fred deplores; what if Ron alters, damages, destroys, loses or puts it in an exhibition that Fred wishes to be disassociated with; what if Ron gives it away? I defy anyone to argue that it’s difficult for Fred to sit down and write a letter to Ron covering all these points and stating the conditions on which he is donating the piece. This should be done in every case and always before the piece is delivered or taken. If Ron doesn’t agree with the conditions of the gift, Fred and he can re-discuss and, in any event, Fred has the upper hand since he can call the whole thing off if Ron won’t agree.
Fred Piccasso has a gallery/agency deal with the Woodbine Gallery which acts as selling agent for Fred: there is no written agreement to this effect. Woodbine sells one of Fred’s pieces to Stanley Krugerand for £500, taking £300 cash and letting Stan take the piece promising to send the £200 balance a month later; Woodbine sells without a contract of sale.
Is there a legal contract of sale? Yes, but who are the parties to it? It could be that Woodbine in fact bought the work from Fred themselves, prior to re-selling it to Stan at a profit; in which case Woodbine can sell to Stan for any price they choose, and simply have to tell Fred what they did and pay the price to Fred that he originally asked for; and also there are two contracts of sale, one between Woodbine and Fred, and the other between Woodbine and Stan. Alternatively, it could be that Woodbine sold as Fred’s agent; in which case Woodbine must sell at the original price agreed with Fred, and they must also disclose to him Stan’s identity when they pay over the purhase price (less their commission for acting as Fred’s agent); and so there has been only one contract, i.e. between Fred (acting through his agent Woodbine) and Stan.
The only way for artists to ensure that galleries always sell as their agent, is for them to have a clear written gallery/agency agreement which spells out the gallery’s role when selling work. Without such written agreements or proof of them, galleries may elect to buy work and re-sell to anyone on any terms, at any price and without having to disclose to the artist the identity of the buyer; with them, galleries must act as agents, keep to the agreed sale price and terms, and must disclose the buyer’s identity. The reasoning behind all this is that the law requires Agents to disclose to their Principals all material facts, to enable the Principal to check that the Agent has done his job properly.
VAT has not yet been mentioned: where Fred and Woodbine are Principal and Agent, VAT is only charged on the sale to Stan if Fred is registered for VAT; where Woodbine buys in and re-sells to Stan, VAT is only charged if the gallery is registered for VAT.
The Woodbine Gallery puts Fred’s work into an auction for sale, with a £300 reserve; it’s sold for £500 to Stan, who pays cash to the auctioneer who, in turn, gives a receipt and hands over the piece.
The auctioneer is acting as Agent for the Vendor (i.e. the seller), who is the Principal. Woodbine must be told all material facts about the sale, such as purchase price and buyer’s identity. If Woodbine has bought in from Fred and is re-selling at auction, then they don’t have to disclose to Fred anything about the sale. If, however. Woodbine is Fred’s Agent, then they do have to disclose everything about the auction sale, including Stan’s identity, because Fred is Woodbine’s Principal.
If an artist personally puts his work into an auction, then he is the Principal and the auctioneer his Agent who will disclose everything. What about the situation where an artist sees his work sold at auction and wants to know the buyer’s identity? For example, Gloria Goldfinger owns a piece by Fred and puts it up for auction and Stan buys it for £500: Gloria and Fred have no relationship (except an intangible umbilical); Fred wants to know the buyer’s identity, for all sorts of reasons. In this case, there is no way Fred has a right to know Stan’s identity, unless Gloria and the auctioneer are prepared to disclose it voluntarily. From this it can be seen that, unless artists ensure that the first (and probably the last) time any work leaves their hands, they take steps to forge some concrete and enforceable links with their work, it is highly unlikely they will ever be able to insist on being told where it is.
All the steps mentioned above can be taken to achieve closer, clearer and more certain contact with work, but they are by no means the complete answer. That could only be achieved if a national registry of visual art were to be established, which would trace work for artists in this country and through the already existing network of international agencies; and that’s not such a crazy idea. What is the most clear and obvious reason for an artist wanting to trace work? Copyright protection and exploitation.
The earlier analogy with musical PRS and MCPS is not simply academic: when our copyright laws were consolidated in1910, there were no national or international enforcement and royalty collection agencies existing, and those interested in protecting and exploiting their newly-acquired economic legal rights in their music set up organisations such as ASCAP, PRS and MCPS throughout the world. Good for musicians, you might say. In earlier columns the economic value to artists of using and enforcing their copyrights has been discussed, and the point was made then that this country is way behind our American and European neighbours in introducing visual artists’ rights agencies.
The establishment of such an agency in this country would mean that it could immediately join hands with foreign counterparts and give to visual artists in this country a vital facility which would undoubtedly produce economic benefits for all. In addition, such an agency could provide a measure of protection for the integrity of artworks, insofar as existing copyright laws allow. Furthermore, visual artists in this country are currently unable to collect their legal royalty payments from the profits on re-sales of their works in European countries, because those rights are unenforceable by U.K. artists so long as this country continues to pursue a policy of not passing such a law here. Perhaps such an agency could offer its services to the Government which, though committed in principle to the introduction of such a law, is unwilling to do so on the grounds that the administration of it would be extremely difficult and costly. Finally, such an agency could also act as a national slide-index/register of visual artworks, which could have many valuable uses: a national archive; a display-cabinet for private and public commissioners. In fact, in other European countries such agencies not only invite commissioners to view but also actively pursue such commissions, especially in the public sector, and negotiate commission contracts on behalf of artists.
Lovely, but how would it be financed? Simple: whenever the agency protected work, collected royalties, allowed work to be viewed, negotiated commissioners or copyright licences, it would take a fee or a percentage – only a small amount to enable it to carry on its work as a non-profit making charitable organisation; if nothing was collected, nothing would be required to be paid. Cock-eyed idealism? No; such an agency is being set up in London now, in conjunction with the French collection and enforcement agency, SPADEM. (Contact Artlaw for details.)
© Henry Lydiate 1981
* © Topic 1960.