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Ensuring artists are compensated fairly

May 09 2017 10:08
Johan Myburg

Moshekwa Langa (1975), 'She Thought of Him Often', mixed media on paper (140 x 100 cm)

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When Mary-Jane Darroll and Ruarc Peffers announced their Aspire Art Auctions in June last year, they were adamant that the art-auctioning industry had to be revived: as far as the auctions’ format was concerned and also in respect of the role played by the secondary market in the art world.

If you talk about things that you still want to do, you are usually extremely generous. Just like paper, the future is patient and talk is cheap, as the saying goes.

Ensuring artists are paid their dues

In the case of Aspire Art Auctions, its first auction in Johannesburg in October gave expression to both prospects as Darroll and Peffers put it. With regard to the auction format, they came up with refreshing insights in terms of presentation – as far as the catalogue is concerned as well as the space within which and the way the works are exhibited – and in respect of the auction as an arena for secondary sales, they made the expression droit de suite part of the vocabulary used in art auctions in South Africa.

Not officially, as there is no legislation in South Africa at the moment governing artists’ rights to a share of the resale of works of art – the so-called Artist Resale Right (ARR), also known as droit de suite (right to follow). This provision, which forms part of the Berne Convention and protects the copyright on literary and art works, offers artists and their heirs the right to a share of the amount paid when an original work of art is subsequently resold, including on auction. This right is recognised in more than 70 countries, including the UK, the EU and Australia.

“We did it without legislation, without any existing guidelines for South African conditions and without any obligation,” says Peffers about this pioneering step, “because we are concerned about the growth and development of the South African art market.”

The amounts Aspire started paying to living South African artists are not only an investment in the industry, but also an admission of the value of artistry and support for artists.

At the moment in SA, only the artists themselves gain from the immediate (primary) sale of their works (such as through a gallery). Should the value of the piece increase over time as the artist’s career develops and the piece is sold on auction, the artist does not share in this financial gain at all.

“It’s only right that artists should share in this success,” says Peffers. “And this is to ensure that artists continue doing what they do, so that they, for example, do not have to seek a livelihood at the age of 40 in advertising or in the movie industry. It has to do with the sustainability of the arts.”

How are artists compensated elsewhere?

It was for this reason that the droit de suite concept was introduced in France in 1893 and later in Europe to accommodate “struggling artists”. In France, laws were passed in this regard in 1920, and in 2001 the EU legally adopted these provisions and extended them to the eurozone.

The EU’s acceptance of this legislation elicited wide reaction, with opposition from especially the British auction houses and galleries who believed this would damage Britain’s reputation as a major centre in the art world.

According to the Design & Artists Copyright Society (DACS), one of the British organisations administering the resale rights, more than £46.9m was paid out to over 3 900 artists and their heirs in the 10 years after these rights came into effect in 2006. In 2015, DACS paid out more than £10m to over 1 500 artists – an increase of 4.3% compared to the £9.6m paid out in 2014.

The effect of Brexit on the British interpretation of the ARR must still be quantified.

In its calculation of payouts in terms of resale rights, Aspire followed the European model using a sliding scale of between 4% and 0.25%. Works of up to R50 000 in value qualify for 4% and those above R500 000 for 0.25%.

Peffers and Darroll admit that these aren’t enormous amounts, but a start had to be made somewhere.

As there is no legislation governing resale rights in South Africa, Aspire made these payments to artists out of its own pocket without burdening buyers. And because there is no official administrator to collect or pay over this money, Aspire also does this itself.

A diverse array of works

Aspire’s foot is in the door regarding the resale rights and it’s in line with its strong focus on the works of established, living artists, as well as its emphasis on contemporary art. This approach is reflected in the 182 lots put together for the first Cape Town auction held at the V&A Waterfront in Cape Town on 27?March (see box).

In addition to works by masters such as JH Pierneef, Hugo Naudé, Gregoire Boonzaier, Walter Battiss and Johannes Meintjes, it is the works of a younger generation of artists that requires attention; artists such as Wim Botha, Moshekwa Langa, Athi-Patra Ruga, Diane Victor and Kemang Wa Lehulere. And then there are the exceptional pieces by especially Robert Hodgins and Christo Coetzee, which have been included in the Cape Town auction.

Duly aware of the Damien Hirst debacle, which led to friction between auction houses and galleries when this British artist sold new pieces directly on a Sotheby’s auction in London in 2008, Aspire does not handle works of art younger than five years.

“We do not accept work directly from artists,” says Darroll. “It’s the galleries’ prerogative. We focus on the secondary market.”

Nevertheless, organic interaction within the system is of cardinal importance: the artist’s studio; the gallery as primary market and the auction house as the secondary market. “It’s important for us to join forces with other interested parties in the system,” says Peffers, “and to undermine no one.”

This article originally appeared in the 4 May edition of finweekBuy and download the magazine here.

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