There's a lot not to like about the art market, including its long-standing propensity for making collectors rich while leaving "starving artists" in the financial dust.
In 2015, Chicago artist Kerry James Marshall donated a new painting to the Museum of Contemporary Art for its annual benefit auction—a fancy affair in which contributed art is sold to raise money for the museum.
Marshall's painting, Still Life With Wedding Portrait (2015), shows the hands (three in white gloves, one in black) of preparators hanging a portrait of abolitionist Harriet Tubman and her husband, John, on their wedding day in 1844. In Marshall's signature style, which alludes to the "whites-only" history of Western art, the composition is deceptively traditional, while the subjects are emphatically, disruptively, and profoundly black.
Still Life With Wedding Portrait brought the highest price at the benefit: $700,000. The buyer's name wasn't announced, but when the painting was shown in Marshall's solo exhibit, "Kerry James Marshall: Mastry," at the MCA the next year, the lenders were listed as Jay and Gretchen Jordan.
John "Jay" Jordan II is a founder of the Jordan Company, a private equity firm with offices in Chicago and New York, and of Jordan Industries, a Deerfield-based holding company. A philanthropist, he has signed Warren Buffett's "Giving Pledge," promising at least 50 percent of his fortune to charitable causes, and has already donated $150 million to his alma mater, Notre Dame. When his daughter, Colby, married Alberto Mugrabi (whose art-collecting family owns the world's largest stash of work by Andy Warhol) on the French Riviera last year, both Vogue and Forbes covered the wedding.
There was reportedly some speculation that (as can happen in charity sales) after winning it in the auction, the Jordans would donate the Marshall painting to the MCA's collection. But this fall, Still Life With Wedding Portrait turned up on a Christie's auction list, with an estimated value of $1 million to $1.5 million. A new record price for Marshall's work was set when the bids rocketed past those numbers and it sold for $5 million.
In just two years, the painting's market value had jumped $4 million, none of which would make its way back to the artist who had conceived of it, created it, and given it away.
True, Marshall isn't starving. He's reaping deserved success and still producing art that's likely to bring him even greater financial rewards. But in 1973, Robert Rauschenberg jolted an auction by objecting loudly that he had worked his "ass off" while his collector was making an easy fortune on the fruit of his labor. Since then, huge gains by the 1 percent from art that brought much less to the person who made it have been looking like a glaring injustice—and an anomaly in the realm of intellectual property. Even the U.S. copyright office, in a cautiously worded 2013 report, admitted that visual artists may "operate at a disadvantage under the copyright law relative to authors of other types of creative works."
The United States is one of the few places where the issue hasn't been addressed at the federal level. In 80 other countries (including all of the European Union), visual artists have a legal claim to royalties—the "droit de suite"—when their work is resold at a profit. According to DePaul University law school professor Patty Gerstenblith, "The U.S. is the only major market that doesn't have it."
There has been one domestic exception: California passed its own Resale Royalties Act in 1976, specifying a 5 percent royalty on sales of more than $1,000 when the seller is a California resident or the sale occurs in California. But enforcement has proven difficult: the courts have ruled that the law can't apply to sales outside of the state, and its constitutionality is still being litigated (with royalty collection halted in the meantime).
Arts attorney Scott Hodes says a successful royalties law will "need to be done nationally." There've been two recent legislative attempts, both spearheaded by New York congressman Jerrold Nadler. Neither offered anything more than a modest return for the artist, and both are now dead. The most recent, the ART (American Royalties Too) Act, introduced by Nadler in 2014, would've provided a 5 percent royalty on works sold at major auction houses for any amount over $5,000. The royalty—which, like copyright, would expire 70 years after death—was capped at $35,000. And the ART Act wouldn't have applied to sales by galleries or dealers—apparently because their sale prices are notoriously and stubbornly secret.
Theodore Feder, president of the national Artists Rights Society, said (in a phone interview from his New York office last week) that the legislation has been resisted by the big auction houses and eBay. "But there's a $35,000 cap," which is often less than the auction house's own fee, Feder said. "On a $20 million sale [not so unusual in this heated market], the artist would get only the cap amount of $35,000 while the auction house commission would be $2,557,000."
"Why they resist, I'm not sure," Feder said. "And these agreements are reciprocal." When French art is sold on the secondary market in England, he added, "the French artist gets a royalty." When American art is resold in England—or anywhere—the artist gets zip.
Feder expects Nadler, a Democrat, along with his Senate cosponsors (also Democrats), Tammy Baldwin of Wisconsin and Ed Markey of Massachusetts, to reintroduce the ART Act, essentially unchanged, in early 2018. So, not perfect, Feder admits, but even a Band-Aid fix is better than what artists have now. "Right now" he said, "the artist gets nothing." v