Monday, August 15, 2011


  • WASHINGTON D.C./GREECE. The US and Greece have signed an MOU that makes it illegal for antiquities and Byzantine objects to be imported to the US without the approval of Greek authorities. The measure is aimed at reducing looting and trafficking of these culturally-protected objects. Lee Rosenbaum has criticized the secrecy involved in the decision-making process but transparency would be premature before each of the two countries has satisfied legislative procedures for the agreement's entry into force. Once the agreement is law, the Federal Register notice will publish the agreement and a "list of the types of archaeological and ecclesiastical ethnological material that will require documentation to be brought into the US."
  • LONDON. Former postwar and contemporary director at Christie's and Gagosian Gallery in London, Pilar Ordovas, is opening her own Mayfair gallery with a difference. The emphasis on historical exhibitions is in sync with the trend that "the lines between gallery and museum, corporate and curated, keep getting blurrier and blurrier."
  • LONDON. The High Court has awarded Sarah Thornton, author of the bestseller "Seven Days in the Art World" (an insightful portrayal of the art world and a hugely enjoyable read), £65,000 in damages in a libel case against Lynn Barber for her "scathing review" of the book in The Daily Telegraph. The decision doesn't "clip the wings" of criticism but makes it clear that under defamation law, "a reviewer is entitled to be spiteful as long as she is honest."
  • NEW YORK. Sotheby's, the oldest company traded on the NYSE and the only publicly-owned auction house, claims record first half results with $3.4 billion in sales. Looks like setting a new record required some "de-fudging" of the auction house's 2008 results but in any event, the results were sufficient to put Sotheby's ahead of Christie's (for an analysis of the market share reversal, see Lee Rosenbaum's post). Artinfo reports that Sotheby's CEO Bill Ruprecht attributes the staggering results to the "growth in private sales, increased demand from the Chinese market and exceptional tallies at their recent London auctions." He was also quoted as saying how China is now one of "three legs to the stool" of the art market, with the US and the Euro zone.

Friday, August 12, 2011

Resale rights revisited: why all the controversy?

The artist's resale "royalty" right or droit de suite refers to an artist's right to a share of the proceeds realized from the resale of such artist's work. As the Lerner and Bresler treatise on art law astutely points out, the "prerogative is an attempt to equalize the copyright status of visual artists with that of other authors" because, unlike those creative authors who make substantial economic gains from the reproduction and/or distribution of their works, "a visual artist's primary source of income derives from the sale of the original work in which the image is embodied." In other words, copyright law alone is inadequate in the case of visual artists who warrant the protection of additional rights aimed at addressing this disparity in sources of income among artists. It is these additional rights "at the juncture of copyright, contract and property law" that are known as resale rights.

While resale rights legislation has been enacted in over 30 countries, including the EU, Brazil and Australia, attempts to federalize the right -- the most notable being those by Senator Jacob K. Javits of New York and subsequently Senator Edward N. Kennedy of Massachusetts -- have thus far failed and at the state level, only California has introduced droit de suite (see the California Resale Royalties Act). The question of whether artists should be entitled to resale rights has proven hugely controversial in the United States as illustrated by the removal of resale-royalty provisions from the original draft of the Visual Artists Rights Act of 1987 to ensure the revised bill's passage into law in 1990. The debate centers not only over entitlement itself but also over what the scope of any enacted rights should be and how resale rights would be enforced in practice (surveys of droit de suite legislation abroad have invariably indicated that these statutes are notoriously difficult to enforce and  generally ignored by market participants). The United Kingdom too has played host to a similar debate and it was not until the EU adopted Directive 2001/84/EC that The Artist's Resale Right Regulations 2006 were (somewhat reluctantly) introduced. The opposition to resale rights in the UK undoubtedly stemmed from London's preeminence within the global art market and the fear of losing out to other markets not burdened with the transaction costs associated with the royalty but interestingly, Lerner and Bresler point to yet another reason: the UK, like the US, is a common not a civil law jurisdiction and "the droit de suite impinges on two basic precepts of common law: the freedom to contract and the inalienability of property" (see Morseburg v. Balyon for an unsuccessful constitutional challenge to the California regime).

The Art Newspaper reports that resale rights are once again back in the spotlight as the Artists' Rights Society ("ARS") continues to lobby Congress for federal legislation that would make droit de suite apply to auction sales whilst exempting private sales. Unsurprisingly, the Art Dealers Association of America opposes the proposed legislation on the basis that the administration costs far outweigh the benefits and the reality that such costs would be borne by collectors -- the bread and butter of artists in the US -- and the majority of artists themselves, with only a handful of already successful artists actually reaping any economic gains. The one obstacle the proposal appears to have side-stepped by limiting rights to public sales is the insurmountable challenge of requiring private art transactions to be disclosed (privacy being one of the most deeply ingrained conventions of the art market). However, despite auction sales taking place in the public sphere, there is still considerable secrecy involved and many collectors will resist having to disclose their identity for the sake of paying a resale royalty. It's unclear if any rights introduced would be payable as a percentage of the total resale price, regardless of whether the resale was at a profit or a loss (as per the EU harmonization directive and the Australian model) or as a percentage of the difference between the purchase price and the resale price such that the royalty is only payable when a work is resold at a gain (as per the original Italian model and the California statute). Clearly, from a business perspective the latter is preferable but to be fair, the former is more consistent with the theory underlying the very nature of resale rights (as stated above, droit de suite is embedded in the act of reselling an original work, just like copyright hinges on the reproduction/redistribution of original works, in both cases the dollar amounts being irrelevant).

Nevertheless, no matter what the scope of a federal resale right is (another key question being the term of the right), the costs imposed on the market and the potential loss of New York's competitive advantage over those countries with such legislation are disproportionate to the limited gains to be made by the minority of visual artists whose work even has a secondary market. Having said that, data has failed to confirm that the introduction of resale rights in the UK has driven business away from London to New York, Geneva, Tokyo or Hong Kong. Which leads me to one final remark -- to date, there is still insufficient data to argue convincingly for or against resale royalty rights.

Monday, August 01, 2011

ART PICK OF THE MONTH (July '11): Ode to the Romantic Schizophrenic

Gallery View - Romantic Gothic. Courtesy of The Metropolitan Museum of Art
"Alexander McQueen: Savage Beauty"
The Metropolitan Museum of Art, New York

Through August 7, 2011

Dedicated to my dear friend Jeremy

More often than not, fashion is fickle and fleeting, derivative and uninspired until the genius of the caliber of McQueen accomplishes that rare feat of turning garments and accessories into nothing less than a pure artistic endeavour. While "Alexander McQueen" the fashion house may evoke images of the giddiness of Paris fashion week and even mass consumption (who can forget the ubiquitous trend of the silk scarfs imprinted with skulls? I must confess I own two myself.... neither of which has seen the light of day since circa 2006), Savage Beauty pays tribute to McQueen the artist, his boundless imagination, impeccable craftsmanship and intellect for, reminiscent of the greatest of artists, the creative and the conceptual are intimately intertwined in each of his works, a more fitting noun for his creations than "designs." The exhibition itself is a marvel too.

As you walk through the galleries in awe of the overwhelming beauty and enthralled in the sensory overload that are the sumptuous, tactile materials, resonant music and theatrical showcases (not to mention, the heaving crowds), certain themes begin to take shape though admittedly, some more convincingly than others. Rising from the assortment of delicate lace, intricate beading, deathly feathers, tough tartan wool and sensuous metal is the irresistible voice of nationalistic and anti-racist sentiment, sexual freedom and self-determination. The art critic Holland Cotter rightly points out how Savage Beauty channels any and all political and social commentary emanating from McQueen's oeuvre in the vein of Romanticism and as a result, fails to capture some of the deeper complexities of his mindset and his place among his contemporaries. Notwithstanding the escapist, Byronic nature of McQueen the Romantic, art critics will have to ask how his real-life context of 1980s and 90s London -- so strongly associated with the YBAs ("Young British Artists," the term coined to refer to the group of artists who began to exhibit together in London from 1988, most of whom were Goldsmiths graduates and had Charles Saatchi for their patron) -- shaped who McQueen was and the work he created. Undoubtedly "l'enfant terrible" and "the hooligan of English fashion" in his embodiment of the unorthodox and avant-garde and his unruly, shocking ways, we shouldn't be blindsided into believing that McQueen actually lived in Victorian England.

This is not in any way to disparage the curatorship and research that went into such extraordinary an exhibition. Romanticism certainly works exceedingly well as an overall framework and, let's face it, a crowd pleaser (aren't we all Romantics at heart?). However, if we're going to -- as we should -- embrace these spectacular creations as "art," then the accompanying art criticism should be held to similar standards as those applicable to more traditional artistic mediums and in this respect, the Savage Beauty catalogue marks only the beginning of the "evaluative process" of McQueen's work. Where I would tend to disagree with Cotter is in his suggestion that the artistic nature of the objects in the exhibition is somewhat jeopardised if unaccompanied by art criticism of a certain, shall we say, "quality," which leads me to touch on the far-reaching debate concerning whether art criticism itself defines what is or isn't "art." From a legal perspective, artists are at times required to articulate the intellectual process underlying their creations in order to be afforded certain legal protections or rights (Cariou v. Prince being the latest decision in favor of art criticism in the context of the "fair use" defense to copyright infringement). However, beyond the realm of the law, I leave it up to you to decide which side to take, that of the artist or the art critic, in such a momentous debate.