Visual artists
If the copyright law is changed, South African artists could soon find extra money in their pockets
Last year, at a November auction run by Aspire Art Auctions, a 1991 William Kentridge drawing, Drawing from Mine (Soho with Coffee Plunger and Cup), went for an impressive R5.4-million. In accordance with the company’s practice of offering artists a percentage of the price fetched for their works in the secondary market, Kentridge earned a handsome royalty sum of about R472 500, calculated according to the company’s cumulative sliding scale.
James Sey — a director at Aspire Art Auctions, a relative newcomer to the field who made submissions to Parliament as part of a lobby in favour of the artist’s resale right — believes that this is in line with international best practice and could enhance the sustainability of the fine art industry.
An artist’s resale right entitles the creator to a royalty each time the work is resold in the formal market — not only the first time it is sold — and may soon become part of South Africa’s copyright legislation.
“We have done it since the inception of the business in 2016 right up to our fifth live sale, which we have coming up [in Cape Town this weekend],” says Sey.
“Our position has been that we want to be more diverse in our dealings with the market. It is a way of giving back to the artists who are making work, because only at the very top end are they making spectacular money from their work.
“The vast majority are just getting by, so we see it as a way of sustaining the arts industry as a whole. In the two years we have been operating the scheme, we have earned royalties for over 80 artists. Our percentage model is a sliding scale, which is the same percentage model used in Europe.”
According to the auction house’s scale, if a work sells for less than R50 000, the royalties earned are 4%. From R50 000 to R300 000 it is 3%, from R300 000 to R350 000 it is 1%. From R350 000 to R500 000 it is 0.5%. The royalty percentage for resold works that fetch more than R500 000 is 0.25%. The royalties are cumulative.
At the moment, Aspire Art Auctions bears the administrative costs of the scheme but it has recommended, as part of its submission to Parliament on the Copyright Amendment Bill, that a collections agency should take over managing the transactions.
According to documents that form part of its submission, “the droit de suite [French for ‘right to follow’] was first proposed in Europe around 1893 to alleviate the plight of the ‘struggling artist’. Although not yet universal, the artist’s resale right has been implemented in different forms in over 70 countries including France, Australia and Russia.”
The auction house described how the European Union had standardised this legislation in 2001, with the royalty paid through official collecting agencies or directly to the artist. Established auction houses and galleries in the United Kingdom protested against the EU directive, but a decade later the European Commission and the UK Parliament reported that the resale right had not had a negative impact on the art market.
Last year, research by the World Intellectual Property Organisation had backed this up, finding that the payment of royalties on artworks sold at auction had had no discernible impact on prices.
Lazarus Serobe, a lawyer who has