Australia The Latest To Look At Having Artists Paid Multiple Times For The Same Work

from the economic-illiteracy dept

Wed, Mar 11th 2009 9:03pm — Mike Masnick

We were just talking about how New Zealand was scrapping its plan for an artist resale right, when Michael Scott pointed us to the news (from last month) that Australia has just proposed an artist resale right. It's not clear how many times it needs to be explained that such things are bad for most artists before politicians will get it. The only artists such a "right" helps are those who are quite successful -- in other words, the ones least likely to need it. For new and upcoming artists, such a resale right creates quite a bit of harm. It acts as a disincentive for anyone to buy or sell their artwork, and limits the likelihood of their artwork becoming well known.

The problem is that, thanks to the rise of the copyright lobby, people really do think that "creation = permanent ownership" at this point. If you're going to create a resale right for art, why not for everything else? If I build a house, why shouldn't I get a percentage of the transaction every time it's sold? The argument is the same as for a resale right for art. Keep applying the argument in other sectors and you realize how dumb it becomes. As part of my job, I use a Lenovo laptop. That laptop helps me make money -- and therefore, under this reasoning, shouldn't I pay a percentage of any profits I make back to Lenovo? Of course not. Why? Because I paid Lenovo originally for the laptop and that was a completed transaction. The fact that I then went on to create value with the laptop is for me to benefit from, not Lenovo. The same is true with someone buying a piece of artwork. They paid for that artwork, and the reward for investing in that artwork and recognizing its potential is that it helps to add value to the artwork, which they profit from when they resell it. The artist made their deal, just as Lenovo made its deal. To come back later and demand a piece of the profits for value added later makes no sense.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: artist resale rights, artists, australia, copyright, right of first sale

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Weird Harold, 11 Mar 2009 @ 9:17pm

An apples and oranges argument.

With a house, you buy ALL rights, and you sell ALL rights. When you buy a laptop, you buy ALL the rights to the hardware, and then you can sell all the rights to the hardware later on.

When you buy music (or get it "FREE!") you obtain LIMITED use rights to a single copy. You don't own any rights beyond the right to enjoy the music. You were not granted resale rights. You don't the music outright, you have purchased the right to use and enjoy it YOURSELF.

Using your logic, I can rent an apartment and then sell the entire building to someone else. It's the mistake you keep making with music, thinking that you have bought ownership, when in fact you are buying at most physical media and a license to listen to the music yourself (and anyone who happens to be in your non-commercial space at the same time). You didn't purchase ownership of the song. Unique item versus licensed copy. It's not even in the same boat.

But hey, who am I to get in the way of a another rant. I am sure you can use this one on your next speaking engagement.
[ link to this | view in thread ]
Weird Harold, 11 Mar 2009 @ 9:20pm

Oh yeah, Mike, when you want to take this show on the road and make some real money with it, let me know. I have done wonders for your traffic this last week, imagine how we would do together debating at $10k a night each plus expenses. What a great use of "FREE!"
[ link to this | view in thread ]
Harold'sSmokingtooMuchKumar, 11 Mar 2009 @ 9:59pm

Re: Music vs. a house
The difference is you don't offer an apartment up for sale/loan at the exact same price you would sell the house. You only get to sell a building one time and the terms of that sale are entirely clear. The music industry likes to pretend they are selling you the house when they are renting it to you for the same price as a sale. If I don't own the CD why did you even say you sold it to me? That is an outright lie and confusion over ownership terms. What you are stating is that the music industry was kind enough to loan me their music for the under the term they are falsely allowed to call a "sale". However I do not have any first rights from this "sale" which includes type of format or even if my friends can listen to it. If even one additional friend sits to listen to it then it is obvious that additional person is stealing the content since it was not a part of the unwritten terms of the music industry's loanership.

It makes no sense in any way you want to frame it against real goods. That is why music rapidly has no value. The music industry has failed to define an appropriate value for true ownership and full rights to resale. Harold- your argument is retarded.

I and many other people will never purchase a product I can never own or which the previous owner can dictate any new rules they deem needed to protect their changing interests. There is no theft when ownership can never be defined or established. If the music industry revokes my ownership and first right of sale on my CDs, they need to return all of my money throughout the years. I never signed a contract agreeing to those terms nor have I ever seen one defining ownership rights in any level of detail.
[ link to this | view in thread ]
Anonymous Coward, 11 Mar 2009 @ 10:02pm

Re:ranting
I love it when Wierd Harold rants about other people ranting. Pot, meet Kettle.
[ link to this | view in thread ]
Paul (profile), 11 Mar 2009 @ 10:05pm

Re:
Some of these comments seem off topic...this article is about the resale of physical pieces of art (paintings, sculptures, etc) and has nothing to do with music.
[ link to this | view in thread ]
Anonymous Coward, 11 Mar 2009 @ 10:12pm

Re: Expression of an idea
Physical art is much like music. Copyright is predicated on the expression of an idea and not the idea itself. Art, music and physical structures can all be types of expressions which copyright can include. Therefore music is not too far removed from this argument and resale is a continual problem in the music industry as well. Just try reselling an iTunes song for example...
[ link to this | view in thread ]
Anonymous Coward, 11 Mar 2009 @ 10:18pm

Re: Re:ranting
Yeah. He could at least pretend to agree once in a while, or have some sort of well reasoned argument.

His ranting reminds me of MLS. Whatever happened to that little turd anyway? Last I remember, he told Mike to stop wearing brown, stating "it wasn't his color". Has he been back?
[ link to this | view in thread ]
Anonymous Coward, 11 Mar 2009 @ 10:19pm

Re: Re:
Music CDs are physical artforms. Which is where a lot of the debate lies here. I purchased a CD, which means I can resell it how I see fit, even make a profit off it if it's a valuable collectors item. Should the artist or whomever the work was pruchased from initially benefit from that? No.
[ link to this | view in thread ]
Grokk, 11 Mar 2009 @ 10:25pm

What ever happened to private sale?
[ link to this | view in thread ]
Matt, 11 Mar 2009 @ 10:31pm

Re:
the only thing you drive is my palm to my face whenever I read your posts.
[ link to this | view in thread ]
Anonymous Coward, 11 Mar 2009 @ 11:25pm

Re:
Well there may be a smidgen of truth to that. In any functional society, there does have to be a antagonist. It's easy to get tired playing that role, and we haven't had one as thick headed and persistent as you for a while.
[ link to this | view in thread ]
Anonymous Coward, 11 Mar 2009 @ 11:26pm

Re: Re:
What? You don't let him drive your imported European car? For shame!
[ link to this | view in thread ]
robert wilson, 12 Mar 2009 @ 12:58am

double dipping artists
australian native art has been exploited by yuppie art galleries for years pay the artist a pittance then inflate the value on resale, on my trips round australia i have seen many works of art at modest prices direct from the artists but back in the cities you have to mortgage the house to buy one is the extra money made shared with the artist-i dont think so
[ link to this | view in thread ]
TW Burger (profile), 12 Mar 2009 @ 1:19am

Concept of Ownership
This reminds me of the American Indian's initial inability to understand the concept of owning a defined section of land.

Did they ever learn the hard way.
[ link to this | view in thread ]
Carlos, 12 Mar 2009 @ 1:27am

Does this go both ways?
So by the same token, if an artist's (perhaps a not very good one) work loses value, would they be required to make up the difference to the seller at the time the artwork is later re-sold.

It's only fair if it's a two-way street...
[ link to this | view in thread ]
Allen (profile), 12 Mar 2009 @ 1:58am

Re: double dipping artists
You're right, the idea has been tossed around for ages as a possible solution to the problem of Aboriginal artists getting ripped off, but you're wrong that this is a good solution.

The best way to solve the problem is education and access to information. Might also solve a few other social problems.
[ link to this | view in thread ]
Smithereens, 12 Mar 2009 @ 2:22am

I Agree!
Yes, I'm in total agreement with the author. And to show my solidarity with him, I'm setting up a new blog to showcase his content (which I will simply cut and paste from TechDirt). I will, of course, link back here - but knowing the author's values I'm sure he'll be happy to contribute the work gratis. I'll surround the content with adverts and affiliate links, naturally. You'll find all this at:

www.hahaistoleyourworkyouidiot.com
[ link to this | view in thread ]
Anonymous Coward, 12 Mar 2009 @ 2:33am

15 minutes of fame
Take some time, and get a plane ticket from wherever you are and get to Pittsburgh. While there, visit the Warhol Museum of the Arts. Conveniently located at http://www.Warhol.org

But, your doing yourself a disservice if you don't visit http://www.Warhol.com ...

Just sayin'...
[ link to this | view in thread ]
Anonymous Coward, 12 Mar 2009 @ 3:43am

Re: I Agree!
FYI:
hahaistoleyourworkyouidiot.com appears to be available.

Just in case you really want to register it, Smithsereens, I recommend
http://www.netsol.com
[ link to this | view in thread ]
sowhat, 12 Mar 2009 @ 3:44am

Mikes neverland economics
Where do I begin? It's obvious you didn't even read the proposal document you linked. It's a royalty that isn't even payable until the artwork is sold for more than $1,000 dollars. At $1,000 they get a $50 royalty payment. This is not a serious disincentive to purchase the artwork or impediment to an investor. Despite your assertion otherwise, this arrangment doesn't prevent artists from becoming "known" or establishing themselves. It is also worth noting that any transaction involved around the artwork would attract at least double the royalty in sales tax plus any applicable capital gains tax. Nobody is screaming the rafters down about that are they?

In the very same document they demonstrate how successful artists are NOT benefiting financially from their success as artists. You also conveniently ignore that similar royalty systems have been in place in Europe with none of the negative impacts you suggest.

The artists in question have a long history of exploitation. They largely live in extreme poverty in areas with no employment prospects and have nothing to sell but their artwork, which they do so cheaply through lack of choice. They have nothing to leave their children and so the cycle continues leaving the entire community in a perpetual state of poverty and depression. This is a positive move by the government to help these people help themselves rather than simply hand them welfare.

Your laptop analogy is ridiculously inappropriate. A physical laptop is a mass produced device, not a work of creativity. It would be fairer to compare the design of the laptop than the device itself. How fair would it be if you spent two years of your life designing the hardware for a laptop on your own dime, to then have Lenovo buy it for a pittance which you have to accept because you have no negotiable leverage? This is much closer to the real situation than your contorted logic. But let's not forget, in your ideal world the designer would have no rights to seek a return on the two year investment at all. Far from what you and your ignorant acolytes might believe, your ideal world is a paradise for the establishment.
[ link to this | view in thread ]
Vincent Clement, 12 Mar 2009 @ 4:06am

Re: double dipping artists
Exploited? Are you saying that Australian aboriginals are being forced to sell their art for a "pittance"? Seems to me they are more than willing to sell the art at what you call a pittance.

What is stopping the aboriginals from travelling to the cities and selling their art directly to city people? Why can't they set up their own art galleries in the cities?

Besides, why should the "extra money" be shared with the artist? They were already paid.
[ link to this | view in thread ]
Vincent Clement, 12 Mar 2009 @ 4:09am

Re: I Agree!
You must be new here, otherwise, you would know that cutting and pasting content from TechDirt doesn't bother Mike that much. He is aware of a few sites that already do that.
[ link to this | view in thread ]
Vincent Clement, 12 Mar 2009 @ 4:15am

Re: Mikes neverland economics
Copies of paintings can be "mass produced". I have a limited-edition print of a painting by a Canadian painter. I voluntarily agreed to the price he was asking.

That print is now mine. It's value has tripled since I purchased it. If I sell it, why should he be entitled to a royalty when I paid his initial asking price?.
[ link to this | view in thread ]
Anonymous Coward, 12 Mar 2009 @ 5:45am

Re: Mikes neverland economics
Umm... I bought a CD. A physical copy of the music. The disc is a physical object, and reselling it removes my ability to listen to the material recorded upon it. So, no, the laptop analogy is not off at all. Someone had to design it. Why is that less creative than music?
[ link to this | view in thread ]
Coffee Stain, 12 Mar 2009 @ 6:11am

Re: WH
"With a house, you buy ALL rights, and you sell ALL rights."

Ahhhh - wrong

The typical house purchase has not included mineral rights in many decades.

But dont let that stop you from having a good time trolling.
[ link to this | view in thread ]
Weird Harold, 12 Mar 2009 @ 6:23am

Stain: All rights to the house and property that are normal for ownership of the house. You also don't get the airpsace rights above the house either. But you buy all of the rights normal to complete ownership.

it's the difference between owning a house and owning a picture of the same house.
[ link to this | view in thread ]
eclecticdave (profile), 12 Mar 2009 @ 6:54am

Re: Mikes neverland economics
"The artists in question have a long history of exploitation. They largely live in extreme poverty in areas with no employment prospects and have nothing to sell but their artwork, which they do so cheaply through lack of choice."

What I'd like to know is why market forces haven't already fixed this problem if it is so severe?

If I were interested in buying art from aborigines (and were not on the other side of the world), and I knew others were buying for a ridiculously low sum - why wouldn't I offer significantly more than the competition and let the artist know when I would next be in the area so he is more likely to sell to me next time? That way I should get all the best pieces, a decent reputation and force my competitors to raise their game.

It seems to me that if there is something stopping this from happening (being threatened or killed while I'm miles away from civilisation springs to mind) then *that* is the problem that needs to solved here.

Or am I way off base?
[ link to this | view in thread ]
Easily Amused, 12 Mar 2009 @ 7:30am

Re:
The problem with that is that it would be a comedy tour... "Come watch Mike embarrass moron" night if you will. That kind of spectacle would be entertaining the first time, then get boring very quickly. It would also detract from the message Mike is trying to get out there.
[ link to this | view in thread ]
y8, 12 Mar 2009 @ 8:18am

Re: WeirdHarry
"it's the difference between owning a house and owning a picture of the same house."

Well, actually, if I own the house, I own the house. If I own a picture of the house I own the picture. I can sell either one without paying royalty to the builder or the architect.

There is clearly a difference between limited and unlimited supply. So the music argument doesn't really stand up to either the house or the painting (artwork).

I agree with Carlos. If I buy a painting and the artist gets a cut when I sell it for a profit, does the artist have to pay me when I sell it for a loss? Seems like a lot of artists would be losing money based on what I see at the flee martket.

Are aboriginal artists really exploited if they sell their artwork for what they think is a reasonable price? Are the aboriginees being prevented from going to the city to sell their artwork? Are they being forced into producing the art as slaves? Are people from the city prevented from going into the bush to find aboriginal artists and buying the artwork directly, thus giving the 'exploitor' competition?

If I find a valuable antique at a flee market and buy it at a bargain price, have I exploited the seller at the flee market when I sell the antique for a profit? Or have I expoited the original artist/producer when I sell the antique? It seems like the people getting exploited are the ones paying the high price for the artwork, but that's called 'free market' supply and demand.
[ link to this | view in thread ]
Jesse, 12 Mar 2009 @ 9:18am

Well, here in BC the government gets a piece of the pie everything you sell a car. No new service or good was rendered. Pretty ridonculous.
[ link to this | view in thread ]
Anonymous Coward, 12 Mar 2009 @ 9:49am

Re: Airspace rights
Yes you do, but only for about 50 feet above your house and this is sometimes different for different locations and cities. Rights can differ and to simplify property rights in terms of intellectual property rights is completely inappropriate no matter how you want to try to frame it.
[ link to this | view in thread ]
Mike (profile), 12 Mar 2009 @ 2:13pm

Re: I Agree!
Yes, I'm in total agreement with the author. And to show my solidarity with him, I'm setting up a new blog to showcase his content (which I will simply cut and paste from TechDirt). I will, of course, link back here - but knowing the author's values I'm sure he'll be happy to contribute the work gratis. I'll surround the content with adverts and affiliate links, naturally. You'll find all this at:

www.hahaistoleyourworkyouidiot.com

Unfortunately, it looks like you're joking. But, clearly you are new around here, because I have always said that this is fine:

http://www.techdirt.com/articles/20090116/0348223430.shtml

So, yes, please feel free to go ahead and do so. You are correct that I am very pleased to contribute my work gratis. Thanks for appreciating my work so much that you would consider helping me to distribute it. That's really a fantastic compliment.
[ link to this | view in thread ]
Laz, 12 Mar 2009 @ 6:59pm

When I buy a piece of art, I have the right to display it, put it in the closet, even destroy it if I so chose.
I do not have the right to make copies and sell them, or to use it in ANY commercial way other than to resell it.

The artist retains the right to make prints/copies and sell them, to sell the image to a publisher for a book cover or a magazine article, the artist keeps all of these rights. Is the artist willing to share these other royalties that originated from the creation of the piece of work with me? Of course not.

All of the artists I know have told me that they make far more on these other rights than they ever do from the sale of the original piece of work.

If they are willing to pass a law requiring the artist to share 5% of these "other" profits with me the buyer of the art work making me a partner with the artist, who is now making money from something that I own then I suppose I could feel good about paying them 5% of any gain I might make from selling the original piece of work.

Imagine being sued by the estate of an artist because the painting Daddy made burned up with the house and now the family wants 5% of the insurance money.
Imagine an architect going to the second buyer of a home and demanding payment from them for the work that was done for the first owner.
The idea may have good intentions, however the execution of it can never be anything but flawed.
[ link to this | view in thread ]
John Walker, 26 Mar 2009 @ 9:55pm

Re: Mike and Resale Royalty
The resale royalty is a scam promoted by arts management/collection societies for whom the management fees are both attractive and money for jam. Just think of a business where most of your clients are dead and they can't say 'No'. A question for you: I have heard that the French PM Sarkozy wants to wind the system back. Do you have any information about this apparent change of heart? It would be ironic if Australia adopted this royalty when the French decide to ditch it.
[ link to this | view in thread ]