Guarding the Avant-garde: The Canadian Artist’s Resale Right


In light of earlier comments made on CBC’s “Q” regarding the Canadian Artist’s Resale Right, OPENWIDE Editor-in-Chief Chris Ling discusses the droit de suite policy. He also talks to Jason Hallows, Western University PhD, about Bill C-516 and artist funding in Canada. 

Waddington’s Auction House is one of the many steel and glass buildings situated on Toronto’s King Street East, the location of the city’s commercial art district. Earlier this year, a series of prints produced in Cape Dorset, Nunavut sold here for close to $450,000. Twelve years earlier, a private collector purchased the same set for $160,000. A look further back to the prints’ original sale in 1959 and the figures are startling: the entire year’s revenue for the Cape Dorset Art Collective had totaled a mere $20,000.

Canadian artists rarely see compensation for the lucrative resale of their toils. They receive no pensions, scarce government support, and have minimal job security. Bill C-516, a private member’s bill brought forward this year by NDP MP Peter Stoffer, would see artists receive a royalty of five percent gross sale on any work resold for over $1000. The Canadian Artist’s Representation (CARFAC) is strongly backing the movement, having proposed a similar amendment to the Copyright Act for a number of years.

The concept of a resale right isn’t a pipe dream of art students cowering behind their easels, nor is it the product of left wing panhandling. In fact, a droite de suite, as it is known in the sixty-odd European countries where it is currently in place, is a common policy that dates as far back as the 1889 acquisition of l’Angelus, a painting by the French realist Jean-François Millet. While Millet and his family faced impoverished living conditions, wealthy industrialist Eugène Secrétan, also a prominent art collector, reportedly purchased Millet’s 31-year-old painting for 550,000 francs, roughly 500 times its original appraisal value. Realizing the predicament of the Millet family, the French government intervened and demanded a royalty fee be paid to the artist. The droite de suite has since become an industry standard across the EU nations, which combine for the world’s largest art market.

"l'Angelus" by Jean-François Millet

“l’Angelus” by Jean-François Millet, 1859

Art tends to circulate through the academic sphere, then the public institution, and if the right dealer sees the right element at the right time, the private market. Timing is everything. Like a fine wine, private collectors sell art for a lucrative value after a period of maturation. In Canada, resale accounts for a staggering 98 percent of all auction house transactions. Canadian Inuit art is a prime example of just how lucrative this private market can be. Prior to a rise in popularity in the late 1960s that would eventually place its paintings, prints and carvings and at the forefront of the Canadian art world, Inuit art would have never had a place in the posh galleries and distinguished auction houses that compose Toronto’s commercial art district. It would not have been considered intellectual, politically turbulent or aesthetically correct, no matter its level of mastery – unless the timing was right.

Jason Hallows knows the importance of timing, having completed his PhD in Sculpture at Western University at a time when the Department of Visual Arts was seeking lecturers for its first-year foundations classes. A decade later at 39, Hallows continues to teach sculpture and installation art part-time at the university, allowing him the additional luxury of pursuing a professional art career on the side. He co-owns and co-curates Parker Branch, a small gallery space in London, Ontario. Though Hallows is not involved in the debate surrounding the artist’s right to resale in Canada, he is unsurprised to hear that it is CARFAC leading the charge. Hallows labels himself a “die-hard lefty” and a proponent of public funding for the arts, but questions the impact of a royalty fee on Canadian sales. “That sounds like a lot for the Canadian market,” he says upon hearing the appraisal price for the Cape Dorset prints. “Canadian work doesn’t often go for that high, unless it’s one of the big stars. We don’t begin to touch the scale of the ‘blue-chip’ artists of the United States, or of England. We just don’t have that one percent- the Carnegies or the Guggenheims – who have so much money to invest in the arts that they have enough to open museums.”

This is true. In Europe, the droite de suite protects artists whose work is beholden to a much more volatile market dynamic than artists face in Canada. The value of art often radically inflates as the years pass, largely based on the artist’s reputation. In the United States, however, even the ‘blue-chip’ artists Hallows speaks of, the Andy Warhols and the Jackson Pollocks, did not see proportional returns for their work during their careers. Warhol profited more from his celebrity status than from the actual retail value of his work, yet his paintings hang in prominent museums like the MOMA in New York, now valued in the tens of millions. Hallows recounts the story of the late American art star Robert Rauschenberg, whose critically acclaimed “Combines” have sold for as much as $11 million at Christie’s, a prestigious New York auction house. “He wasn’t making enough at the end of his career to buy back most of his old work,” explains Hallows indignantly. “There was a huge debate between an auction house and a private collector surrounding the value of one of his pieces, and he wasn’t even involved.” Luckily, Rauschenberg was still capable of producing large-scale artworks into the twilight of his career, and lived a respectable lifestyle until his death at age 82.

"Retroactive I" by Robert Rauschenberg, 1964

Hallows believes he is very lucky to have landed a job teaching art for the sake of his financial security. “It’s difficult. I mean even in the States, even where there is a market. I have a friend who’s a painter in New York. I think of him as successful. I envy his career. But I don’t envy his lifestyle.” In fact, Hallows says his friend envies the financial reassurance of a teaching position. Despite having a gallery in New York and several in Europe, he continues to struggle financially. “The last time I visited him, he was 2 months behind on his rent,” Hallows recalls. This is the harsh reality of the US first-sale doctrine, a policy that profusely opposes the droite de suite and leaves artists at the whim of an unstable economy. During the 2008 recession, art sales fell dramatically in the US: during a time of financial uncertainly and widespread real estate foreclosures, a painting for the front hallway is an unlikely investment. The only real positive to the American art market is that volume and competition generally drive up prices; there is simply more excess capital to be thrown at the cultural sector. But American artists are not protected, and they likely won’t be in the near future (let’s not forget how long publically subsidized health care took to implement).

Canadian artists may not face the same competitive pressures as their American counterparts, but all artists face a ubiquitous reality that exists beyond the confines of any single art economy: aging. It is standard for the legacy of an artwork to outlive its maker, if the European masters are any indication. But what happens to artists when they become too frail to climb scaffolds or balance on ladders? For artistic concepts cannot be patented. They can be copyrighted, but the visual arts remain the only creative industry where the resale of an original does guarantee financial return for its creator. Royalties are standard in the music industry and in film. Photographs, though they are subject to duplication and manipulation in the digital age, are protected for the most part. Yet paintings, sculptures, or print series, major investments in time, money and labour for artists, are offered little protection. Artists rarely profit from duplicating their work because of its medium, and unlike in the design field where creativity is rewarded with a tangible price tag, the art market is subject to unpredictable political and cultural shifts that can render a successful artist starving overnight.

“The reason I do support [the bill], the reason why I do think that funding artists is important, is for the health of the culture more widely.” Hallows illustrates the shortcomings of a conservative cultural mentality in Canada, one that places too great an onus on monetary efficiency at the expense of cultural capital. He reminds me that the avant-garde, the radical departure from an existing paradigm, is the catalyst that drives social progression. If funding for the arts continues to be jeopardized, we will surely sustain huge losses as a culture. If Canadian artists have any chance of shaping Canadian identity by pushing the avant-garde, they need to be compensated. The traditional segregation between the creative and the business is rapidly fading; companies increasingly gravitate towards an interdisciplinary approach to reach existing markets and appeal to new ones. Multi-media platforms, once used exclusively in the tech sector, are now common in every discipline. In a recent lecture at Western University, the CBC’s Jian Ghomeshi referred to the emerging job-market as a place for individuals of renaissance, people with creative solutions to conventional problems. The social role of the artist cannot be undermined.

Yet the difficulty of a career in the industry is daunting, reflected in declining enrollment numbers in Canadian university visual art programs. Between 1990 and 2005, the average earnings of artists fell 11 percent while labour wages in other industries increased by as much nine percent. The security of a droite de suite would incentivize younger generations to pursue careers in art, and help aging artists to earn a consistent living without the need for additional sources of income. “Even if art wasn’t a multi-billion industry that employs tens of thousands of people and generates millions of dollars in tourist dollars every year,” muses Hallows, “I would still support the idea of funding it at a loss, because of its importance for the health of a society.”

But as he points out, Canadian art does constitute a multi-billion dollar enterprise. The culture industry’s financial viability is too often absent from the national economic conversation. The Harper administration and its proponents continually fail to recognize just how vital the cultural sector is to the Canadian economy; artists in particular utilize a diverse framework of public infrastructure and private business to support the production, distribution and exhibition of their work. “I think it all comes down to meaning,” says Hallows. “I think it all comes down to a cultural expectation around what art is, and should be, and who it serves. All that money goes back into the economy, exactly the same as it does in any other industry.” Art also stimulates commerce in other sectors. In the past, Toronto’s annual Nuit Blanche Festival is known to have brought in over $70 million in revenue for the city. The recent David Bowie exhibition at Toronto’s AGO drew massive numbers to downtown core businesses for weeks. Maybe, as Hallows points out, the art industry “just doesn’t look like the one that the government wants.”

David Bowie is

Public funding for the arts hasn’t always been in a floundering state. “In the 70s, in Canadian social fashion, we legislated an art scene into a more viable thing financially for artists,” Hallows tells me. “The Canada Council started giving huge sums of money to artists – legendary sums of money – just to be artists. What that did was allow them to produce work that was not necessarily commercially viable, and it permitted some very progressive experimentation. American institutions were trying to model themselves after the Canadian model of publically funded, alternative spaces.” Fortunately, not all of the private market is ignorant to the struggles faced by Canadian artists. Although the droite de suite is only a consideration at the federal level, Richie’s, an auction house just a few blocks from Waddington’s, has taken their own steps to implement a resale royalty. As of May 2013, they instated a fee of 5 percent on all works resold for over $1000, welcome news to CARFAC and proponents of Stoffer’s bill.

It is my hope that in the near future, private sector institutions will follow the example set by Richie’s. Supporting artists has implications on a much wider scale than the eradication of income inequalities. The conservative right will argue that progressive experimentation never produced so much as a dime for the Canadian economy, but beyond the books, it is cultural enrichment, education, and the pursuit of the avant-garde that will prove to be of greatest importance in the long run.

One thought on “Guarding the Avant-garde: The Canadian Artist’s Resale Right

  1. This is really interesting – as a writer, who knows little about the other half of the art world – I appreciate this insight and I completely agree

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