Abstract

Excerpted From: Gabrielle E. Stanfield, The Role of Black Artists in the Reconceptualization of U.S. Resale Royalty Rights, 47 Columbia Journal of Law & the Arts 287 (2024) (205 Footnotes) (Full Document)

In the past few years, Black artists have been at the forefront of advocacy on the issue of resale royalties for visual artists in the United States. These efforts have occurred in conjunction with a significant uptick in the value of pieces on the resale market and growing appreciation specifically for Black art. In 2022, global auction houses set new records in annual sales, reporting revenue close to eight billion dollars apiece. Following a decrease in sales globally in 2020 as a result of the pandemic, the success of art transactions seemed to offer evidence of renewed success in the art market generally and in the United States specifically. For example, in 2022, the Paul Allen sale at Christie's New York brought in a total of $1.6 billion, cementing it as the largest single-owner sale in auction history, with several pieces within the collection going for *288 more than $100 million each. As the U.S. art market has grown and matured, there has been increased attention on the promotion and sale of work by diverse artists as condemnation of organizations that have systematically excluded underrepresented individuals became more widespread. This advocacy has prompted change as it directly implicated the practices of museums, galleries, auction houses, and collectors. Actors at every level of the art world have responded, demonstrating greater intentionality in the inclusion and support of diverse artists through better collection, exhibition, and consignment practices. Yet, inequities within the U.S. art market have persisted. Despite measurable increases in the sales of fine art, the myth of the starving artist lives on, specifically as creators of visual art in the United States remain shut out from direct financial benefits of the sale of their work, particularly in the secondary market.

The issue of resale royalties for artists has been a topic of contentious debate in the United States for decades. A key aspect in the consideration of this provision today rests within the evaluation of the role of Black visual artists to the U.S. art market. Between 2008 and 2021, the market for work by Black artists grew by close to 400%. While on its face, this increase appears to represent tremendous growth in the recognition of Black artists, more careful analysis reveals that there is still great inequity given the structure of the U.S. art market with respect to royalties. Resale royalties, also known as droit de suite, are recognized in legislation by more than seventy countries abroad. In practice, these provisions recognize a so-called “natural right” of artists to benefit from their work long term by providing artists with a reasonable percentage of the *289 profits from the sale of their work in the secondary market. In the United States, the legislative implementation of droit de suite has been largely unsuccessful on both the state and federal level. In countries where droit de suite has been implemented, there is no shortage of criticism regarding the merits of the policy, as many view its shortcomings as an additional harm in the plethora of inequities faced by visual artists.

Focusing on more recent advocacy for resale royalties in the United States, there is a clear connection to the work of Black artists at the center of the conversation. Modern attempts to ensure a legal right to resale royalties have taken place through more targeted models including, but not limited to, mandatory terms for public auctions of Black art, specialized contract provisions in private art sales, and the use of Blockchain technology in the development of smart contracts. Furthermore, many successful models of securing resale royalties for artists have been developed as a result of the work of organizations committed to supporting the work of contemporary Black artists, such as the Souls Grown Deep Foundation and the Dean Collection.

This Note will examine the unique position of Black artists in the establishment of a legal right to resale royalties in the United States and the broader implications of this effort on the enhancement of equity for all American visual artists. Part I reviews the history of droit de suite, focusing on the history of resale royalty rights in the United States and pertinent factors that have contributed to the failed implementation of droit de suite thus far. Part II analyzes the harms perpetuated by an absence of resale royalty rights for visual artists in the United States, with a particular focus on the impact on Black artists despite an increased popularity of Black art. Part III examines the *290 methodologies through which resale royalty rights have been reframed in the United States and the consideration of Black art in particular within these models. Overall, given the various dimensions of the American art market, the primary focus will be on public art transactions; however, the merging of contractual solutions with technological advancements is presumably adaptable to private sales as well. Ultimately, this Note argues that the reconceptualization of resale royalty rights toward an approach of individual implementation presents the most promising solution for securing a legal right to resale royalties in the U.S. art market, and increasing equity in the U.S. art market for all visual artists.

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Looking at the evolution of droit de suite from a global perspective, the trend toward including resale royalty provisions on a contractual basis suggests a major turning point for the recognition of this right within the United States. This trend follows the broader shift toward using contracts in art transactions within the American art market. However, the success of resale royalty models today is directly attributable to the bargaining power of Black artists because the demand for work by Black artists has transformed the U.S. art market. Given the large role that American artists play in the creation of innovative visual work and the United States' role as a leader in global art transactions, the recognition of royalty resale rights within the U.S. market is significant.

In sum, Black artists have challenged leaders in the art world to institute substantive measures to address systemic inequities in the context of a newfound social consciousness of racial injustice across industries in the United States. The recognition of resale royalty rights falls right within this goal given the disparity in the distribution of profits for the sale of work in the secondary market. Contractual measures that secure a legal right to resale royalties are a multi-faceted solution that addresses this inequity, remedies the historical exclusion of Black artists, and enhances equity in the U.S. art market for all visual artists.

J.D. Candidate, Columbia Law School, Class of 2024; B.A., University of Virginia, Class of 2019.