Drawing a Blank: Why Is Congress Going to Reward Wealthy Artists?

Right now, while everyone in social media is arguing over other things, a horrible little law is making its way through Congress which you ought to be aware of – if you happen to love art and care about capitalism, as I do.

The Art Newspaper reports today that a bill known as “The American Royalties Too Act” or “A.R.T.”, has gained six co-sponsors over the last three weeks.  The bill would impose a resale royalty on works of art meeting certain sales criteria, and is modeled after a European concept known as “droit de suite”.  Since my time at Sotheby’s Institute back in graduate school, the concept of droit de suite has struck me as both nonsensical and typical of those who, in order to solve a perceived problem, decide to create another one.  I’ve warned about it on the blog before, as you can read here.

The wincingly awful use of the word, “Too”, aside, here’s what I promise you will happen over the next decade, if this “A.R.T.” bill passes:

1. The law will do little or nothing to aid most artists – and may actually hurt them.

In theory, this law is designed to protect struggling, up-and-coming artists.  As Christopher Rauschenberg, son of the late artist Robert Rauschenberg wrote on HuffPo yesterday, those pushing this legislation believe we “should foster and support young artists if we want them to continue to create. Implementing legislation that equitably distributes the proceeds of creative output will cost taxpayers absolutely nothing, yet would mean a great deal to the artistic community.”  [Helpful hint: any time you read the words, "equitable distribution" as a justification for anything, raise an eyebrow.]

In reality, if passed this law will largely operate for the benefit of already wealthy artists, their foundations, or their estates, such as that of Mr. Rauschenberg, by pouring additional thousands of dollars into their coffers every time a work of theirs is sold for up to 70 years after their death.  At the same time, with a resale payment tacked onto every sale, those artists who are not already household names will find that prices for their work will remain artificially depressed, keeping sales turnovers of their work low.  Most artists, in fact, never see their work come up for auction at any of the big auction houses, and this law will do nothing to encourage that to change.

2.  The law will turn out to be a great tax-raising scheme.

While the law appears on the surface to be designed to help the poor and struggling artist, what is lost in the emotional component of the argument being made largely by those on the left – natch – is the fact that this is not free money, nor an act of beneficence on the part of Congress.

For royalty payments, you see, whether from sales or licensing of intellectual property, constitute taxable income.  What Congress is proposing is really a way of imposing an additional income tax, without actually calling it that.  The royalty payment will be taken by the auction house at the time of sale, and then the artist or his estate will be sent these payments, quarterly.  Once that royalty payment makes it to the end point – the artist or his estate – the government can tax that income.  So in truth, this is a way of squeezing art buyers out of just that little bit more of their money, even though the collection of said money will take place at a different end of the revenue stream.

3. The law will cause the market for Modern and Contemporary Art sales to shift away from the U.S.

Decades ago, Paris lost its primacy in both art gallery and art auction sales to London, in part because of the passage of draconian French laws regarding droit de suite and other forms of taxation.  Over the past fifteen years however, and particularly after Britain adopted EU regulations, the center of the international art market has shifted from London to New York.   With the implementation of this proposed A.R.T. Act, sellers are going to be faced with paying royalties – up to a cap of $35,000, depending on the resale price – on every piece of art falling under the protection of the law that is sold: a cost which they will pass along to the buyers.

Now yes, plenty of high-value auctions still take place in London today, and if this law passes they will still take place in New York, as well.  However over time, markets tend to seek environments where they experience the fewest restrictions on their ability to engage in commerce, which is why sales at Sotheby’s in New York eclipsed those of the home office in London years ago, and also why the socks you are wearing right now were probably not made in America.  If Europe suddenly became a (comparatively) cheaper place than the U.S. to engage in the art trade, the bulk of the buying and selling in the Modern and Contemporary art market could easily shift back to London.  Rather than making things better for everyone, Congress could actually be making everything worse.

4.  Is this bill really about achieving fairness? For whom?

In defense of this bill, co-sponsor Congressman Jerrold Nadler (D-NY) recently told The New York Times that, “To me, the bill is a question of fundamental fairness.”  However under scrutiny, this moral argument falls to pieces in the face of reality.  Under the European version of this law one of the wealthiest artists in the world, Pablo Picasso, is still collecting droit de suite payments – or rather, his already very wealthy children are, because he’s been dead since 1973.  Does that seem, on a common-sense basis, to be “fair”?

What about a living, wealthy American artist, such as Jeff Koons, who will directly benefit from the American version of this law?  Koons makes millions of dollars in commissions for creating things such as giant topiary puppies.  Is he so disadvantaged that getting a check for $35,000 every time some subsequent purchaser buys one of his sculptures, such as his metallic balloon animals, will “fundamentally” address a wrong done to him in some way?

By way of conclusion, I would point out that readers are of course most welcome to disagree with anything I’ve written in the comment section of this post, as indeed you always are.  Yet it seems to me that, from a purely rational, analytical point of view, one cannot deny the fact that those who will benefit most from the passage of this law are wealthy artists, and the government.  Little or any benefit will be shown to accrue to the group of individuals which the A.R.T. Act was allegedly designed to help, but Congress will once again have found a clever way to tax American business while wrapping itself in a cloak of moral superiority.

Detail of "Elevation of the Dome of the U.S. Capitol" by Thomas Walter (1859) Library of Congress

Detail of “Elevation of the Dome of the U.S. Capitol” by Thomas Walter (1859)
Library of Congress, Washington D.C.

The Hipster at Home

Yesterday an architect friend sent me a rather interesting article about the contemporary American artist Jeff Koons, which happened to re-trigger a thought process I had begun but abandoned some months ago regarding the American pop artist Andy Warhol.  Those of you who know me or read these pages regularly might be surprised to find me writing about these two artists, but as I often do I beg you to bear with me.  I think you will be rather surprised.

Jeff Koons (born 1955) is originally from Pennsylvania, and after studying in Chicago and Baltimore moved to New York in the 1970’s.  He  has been something of a controversial figure in the art world and in popular culture for some time now.  He is famous – or infamous, depending on how you look at – for creating works of art that are often regarded as bizarre, deeply offensive, or simply tacky objects of kitsch.  Some tamer examples of his work include “Puppy”, a giant, 43-foot-tall topiary in the form of a dog;  and arguably his most famous work, “Michael Jackson and Bubbles”, an 18th century-style gilded, white porcelain sculpture, depicting the late pop star and his pet chimpanzee.

There is no question that Koons is an artist whose work is often difficult to like.  Looking at an exhibition or catalogue of his output, he veers seemingly without explanation from humor to pornography, from childlike delight to repulsive blasphemy.  What some also find objectionable, beyond his sometimes prurient subject matter, is that more often than not Koons himself does not actually make any of the art which bears his name.  Instead, he employs a veritable factory of assistants who produce his work, based on his ideas.

Interestingly enough, this production method ties him rather closely to the example of another controversial American artist, albeit from an earlier generation.  Like Koons, the hugely influential pop artist Andy Warhol (1928-1987) also hailed from Pennsylvania, and left the relative sanity of the Keystone State to pursue his career in New York.  Warhol established a “factory” method for his famous colored prints of Campbell’s soup cans and Elizabeth Taylor, whereby he himself was not actually producing the art, in most cases, as indeed Koons was to do later.

Subject matter aside, it should be pointed out that this method of an artist’s workshop producing work in the name of an artist, rather than the artist producing it all himself, is more traditional than might first appear.  Today we think of the artist as toiling away in solitude, covered in sweat, paint, or flakes of marble, in some attic studio, but this is a comparatively recent phenomenon.    As I wrote about recently in regard to the contemporary copy of Leonardo’s “Mona Lisa” from The Prado, which was recently restored to glorious effect,  many artists like Leonardo, Rubens, and Murillo had young artists-in-training who apprenticed with them, in order to learn the trade themselves.

This method of art production, controversial as it may be to some, turns out to be a clue to what we might call a kind of krypto-conservatism on behalf of both these very unconventional men.  There is no question that Koons and Warhol challenge notions of the nature of art, such as what is and is not acceptable, both in their subject matter and in their way of producing art.  However it is rather interesting that in order to do so they returned to a pre-modern philosophy, more common to the 16th century than the 20th, in order to achieve it.

And what is even more interesting is the fact that despite all of their hipster swagger, preaching a new world of self-indulgence to a godless congregation, both Koons and Warhol are rather different when they are off-stage.  In their respective home lives, in the nests they create for themselves away from the paparazzi and the glitterati, they turn out to be not only somewhat conservative, but downright traditional.  The reader will be rather surprised to learn that these two artists, known for their bad taste in the art they themselves produced, in fact display rather refined tastes in their own homes.

Koons lives on the Upper East Side of Manhattan – not exactly a bohemian, starving artists community – in a home designed by architect Peter Pennoyer, chairman of the Institute of Classical Architecture.  His traditional home is filled not with his own art, but with the work of well-established, great Western artists of the past six centuries, that read like a solidly thought-out collection from some conservative banking or industrialist family: Eduard Manet, Gustave Courbet, Nicholas Poussin, Quentin Massys, Jean-Honoré Fragonard, and others. There is no bare-bones, cold glass and concrete living, here.

Similarly, when Andy Warhol died and Sotheby’s was called in to value the contents of his Manhattan residence – again, an elegant, traditional house on the Upper East Side in Manhattan, and not some grungy bedsit in Alphabet City – they were shocked to find that in private, Warhol lived like a descendant of colonial gentry. He filled his house with things like museum-quality furniture from the American Federal period of the early 19th century, creating rooms that would look perfectly at home in the White House or the mansion of a Boston Brahmin family. Whatever his public persona may have been, in his private life Warhol was not living with furniture made out of plastic.

Both of these challenging, difficult artists play the offending fool in public, yet adopt the role of the tasteful courtier in private. In this respect they are not unlike other challengers of the status quo in modern history, such as Voltaire or Marx, who despite what they said or did in public, in their private lives sought out and enjoyed the kinds of luxuries which are normally considered the benefits of being successful members of the establishment. By acquiring such accoutrements, whether consciously or not, they betray a realization that the supposedly bourgeois values of tradition, comfort, and good taste are not such bad things as they are made out to be, by those who claim to abhor such things.

Of course it would be easy to simply dismiss such people as being nothing more than hypocrites. Yet the better way to absorb this knowledge is to look at it as a challenge to some assumptions held by those who seem to attack traditional ideas about culture, taste, and so on, as well as our own perceptions of both such persons and the relative strength of their convictions. In the end, perhaps the power of tradition is not so dead a thing as we have often been led to believe.


Andy Warhol’s Upper East Side living room (1988)