Can Artists Use Their Sale Contracts to Game the System?

In March 1971, a broadside boldly labelled The Artist’s Reserved Rights Transfer and Sale Agreement rolled off an independent press in New York. Across the poster’s front was a manifesto by Seth Siegelaub, the innovative conceptual art curator-publisher and former dealer, outlining ‘some generally acknowledged inequities in the art world’. Its verso, drafted by the young lawyer Robert Projansky, contained 19 clauses in heavy-handed legalese promising to remedy those ills. Among the terms was the right for artists to refuse exhibitions of their work, the right to know who purchased it and, most controversially, the right to claim 15 percent of any resale profits, giving artists a voice in how their work is used and a share in its future value. 

The instantly iconic Artist’s Contract, as it became known, was designed to be used as the standard agreement between artists and collectors whenever works were sold or ownership changed hands, regardless of the artist’s stature or type of work. The unusual royalty amount of 15 percent had appeared previously in artwork sales contracts from 1969 by the artist Ed Kienholz, and by the infamous activist group the Art Workers’ Coalition (AWC), in which Siegelaub was a peripheral participant. But Siegelaub’s publicity instincts ensured that the Artist’s Contract was widely reproduced and translated and, since 1971, this document has been at the centre of debates concerning artists’ economic and property rights.

Yet, the Artist’s Contract was no panacea. In an article published in the May 1971 Art Workers Newsletter (a project of AWC members), the editors criticized it for failing to address very real power differentials, arguing that only those artists in strong bargaining positions would be able to convince collectors to sign it, or could wield sufficient resources and influence to enforce it. The contract’s emphasis on benefitting individual artists was seen as an even greater shortcoming. To some within the AWC, resale royalties were only a temporary solution for establishing financial equity while working towards broader, more radical goals. Resale royalties appear on the group’s March 1970 statement of demands, but so does a programme for redistributing the wealth produced through the art market. To achieve this, they proposed a tax on the resale of work by deceased artists that could be disbursed to living artists in need. Both aims were considered necessary only until ‘a minimum income […] guaranteed for all people’ was secured. For these critics at the Art Workers Newsletter, Siegelaub and Projansky had ignored the moment’s broader aims of redistribution. 

Though the Artist’s Contract never became common practice, it is still widely cited and deployed in new ways by younger generations of artists (often in collaboration with dealer and lawyer allies), and its royalty clause has been replicated in many adaptations. Some efforts have also taken up the call of the Art Workers Newsletter for economic justice: contracts used by Nari Ward in 2019 and Cady Noland in 1992 have specified that all or a portion of any resale profits earned by collectors must be donated to specific charities, respectively the Bowery Mission and the Partnership for the Homeless. In 2019, I collaborated with curator Joseph del Pesco of Kadist and lawyer Laurence Eisenstein on a revision of the Artist’s Contract stipulating that collectors revert 15 percent of resale profits to a charity of the artist’s choosing. Our idea was that artists could use it to aid their own charitable foundations – or in benefit auctions and sales generally – so that the financial value their work produces might also support their social values. Such models do not address artists’ need to sustain themselves, but are nonetheless worth testing. In the wake of the pandemic, artists’ foundations in the US and elsewhere came to fill an important role similar to the AWC’s proposal for redistributing funds to support artists in dire financial straits, with many establishing or increasing emergency grants. At the same time, these efforts remain provisional. Little has been done to destabilize the perpetual concentration of wealth that necessitates redistribution in the first place. Rather than meet precarity with provisional solutions, what will sustain us through the next emergency? How else can the art market’s financial flows – and the legal instruments guiding them – be redirected? The redistribution of power and resources requires one party to give something up. Looking back, it begs the question: was 15 percent ever enough? 

This article first appeared in frieze issue 217 with the headline ‘Sign on the Dotted Line’.

_{Main image: Person signing paperwork. Courtesy and photograph: GettyImages and Junophoto}