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Against the Droit de Suite

Post #1480 • December 23, 2011, 9:40 AM • 3 Comments

I have always been against the droit de suite by instinct. I see it as an extension of an enervating anti-materialist attitude about art, that art exists in a realm of ideas, meanings, and cultural import. Its status in that realm diminishes or negates the pleasure of looking at it as an object. It is, in fact, an object, around which meanings and ideas accrue. Treating it unlike any other kind of object around which meanings and ideas can accrue—including, potentially, anything—seems all but guaranteed to have perverse consequences.

This week Abigail R. Esman spelled out those consequences in concrete, non-instinctual terms in an article for Forbes (via ArtsJournal) regarding soon-to-be-enacted legislation in the UK and proposed legislation here.

It’s hard to argue with the fairness of the concept itself. I recall dining with the descendant of one major 19th-century artist in the late eighties, the night after a work by his artist ancestor (by two generations) broke all previous records for a price paid for any work of art. A struggling artist himself, my dinner companion raged, understandably, that he was forced to seek subsidies and grants to pursue his work, while the owner of his relative’s painting was about to take home a check for many tens of millions of dollars, simply for having had the talent to buy the work and sell it. A little bit of that thrown his way, he said, might have been a nice gesture.

But is droit de suite really in the artists’ favor?

She answers no: it's likely to drive transactions to where there are not resale royalties, injure the market for young and mid-career artists, and hamper scholarship. The article is concise and articulate and I agree with every word.

I would just make one additional remark: this example fits the larger pattern of regulations in general. They are created to address some iniquity. (A messy Wikipedia article says that the droit de suite was created after an 1858 Millet painting sold for millions after World War I, when the artist's heirs were destitute.) The actual implementation requires a bureaucratic structure which only the largest and most established businesses can comply with, thus fostering an anti-competitive environment and making life difficult for the very people the law was intended to protect. One comment at the Forbes article reads:

Droit de Suite as currently constituted in its various incarnations benefits established artists in the vast bulk of cases. And if you look at the class action suits that have been filed, they have all come from established artists. This tells me that the law does not do what it sets out to do. And it creates blizzards of paperwork.

As Eric S. Raymond, writing about the heinous Stop Online Piracy Act, piquantly put it last week:


Yeah, no shit? How…how do they avoid noticing that in reality it’s like this all the time?

Everyone knows that making a living at art is difficult. Not everyone realizes that success in an art career requires a level of numeracy such that if you had it at the beginning of your art career, you would have looked over the numbers and gone into another line of work. But making the art market less free isn't the right solution to the problem. That's just going to turn around and bite us.



Walter Darby Bannard

December 23, 2011, 10:57 AM

I am quite familiar with the problem but I had never heard the French phrase. That should have been explained up front.

This iniquitous notion rears its ugly head with some regularity. I recall that it got a lot of attention back in the '60s. Fortunately it is such a clear type specimen of unintended consequences that any reasonable person can see what a bad idea it is, and it never got anywhere legislatively. I recall writing a letter or two about it, and I believe we discussed it at some length on the old Artblog.

As I recall the advocates usually point to the sale of art that has become very expensive, as in your example, because that's where the notion of "fairness" winds its way into the liberal conscience. They never bring up the far more common circumstance of art that sells for less than original cost, where the logic of the thing would dictate that the artist give the seller a refund.



December 24, 2011, 11:17 AM

More on the controversy from the Guardian.

David Hockney and Gillian Ayres are among those who have said the levy does "little or nothing" for the "vast majority" of British artists, but envelops the art market in red tape, and discourages art dealers from buying works of emerging artists and those who have not achieved "celebrity" status. ...

[Chairman of the British Art Market Federation Anthony] Browne said recent research showed only three out of 100 artists benefited, with the biggest beneficiaries "those lucky enough to be descended from a very famous artist."

The losers would be "the antiquarian bookshop selling a low-value print, or small antique shop selling a £1,500 picture by a minor deceased 20th century artist", who would be "completely enveloped in red tape."


Walter Darby Bannard

December 24, 2011, 2:39 PM

So they are actually considering remunerating descendants! I never heard of that, aside from your story above. In the past it involved just the living artist. What a nightmare!

Of course, knowing politicians, they may compromise and limit it to living artists, which should be enough of a mess to please those who seek to improve the world.



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