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Artists and their Inheritors Should Get Paid Forever

proposing a new standard of payment and a contract for “commissions in perpetuity”

Mar 25, 2007
Peter Falkenberg Brown

Even though I’m not an artist, I feel a strong affinity for those who try to make a living by painting or drawing or sculpting. My mother, Polly Kapteyn Brown, was a Maine artist and art teacher who specialized in abstract art in acrylic. She passed away in 1983, and never found much commercial success with her art, as many artists experience. Our four children study art three times a week in their home school, focused on classical drawing. They all seem to love art, which makes my wife and I very happy. The walls of our home are covered with fine art posters that we’ve picked up over the years, and we try to visit museums as often as we can.

Art brings so many people joy, and yet as an occupation it seems to me that artists in general are not adequately compensated for their work. When they sell their work, whether for a high or low price, it is true that they’ve gotten paid. If they’re very lucky, they’ll be able to support themselves from ongoing sales of new work. Any trade has risks, so I’m not suggesting art subsidies for artists who may not be very good (although I’m strongly in favor of renewing the patron system). My concern is with the resale of an artist’s work.

To me, it just seems wrong that the original artist doesn’t profit when a painting is resold over and over again, all the while going up in price. It must be particularly galling for a living artist to watch his or her paintings fetch astronomical prices years after the artist sold them for a much smaller sum. I don’t know if a study has been done on this, but I wonder how many artists throughout history struggled to pay the bills while their earlier art was enriching investors and collectors.

I would like to propose that from now on, artists sell their work with a contract attached that creates a “commission in perpetuity” for the original artist and the artist’s inheritors. It’s a simple idea, and technically easy to carry out. Whether buyers will agree is an unknown, but I think it’s worth the attempt. The percentage listed below is an initial proposal, but one that I believe is fair. The contract below should probably be modified by a lawyer to be in better legalese, since I’m not a lawyer and am thus not giving legal advice. The contract would state:

Artist’s Commission in Perpetuity

I, ______, the undersigned artist (referred to hereafter as “Artist”), sell this artwork, identified as ______, created by the Artist, for $______ dollars to customer ______ (referred to hereafter as “Customer”). The Customer agrees that when the Customer sells the piece, for any price greater than the Customer’s purchase price, the Artist shall receive a commission of 10% of the gross profit (defined as the difference between the purchase price and sale price), payable in full as soon as the new sale price is received by the Customer.

The Customer also agrees that any future SALE or GIFT of this art piece shall require the new customer or gift recipient (referred to hereafter as “Future Owner”) to sign a RESALE VERSION of this contract (referred hereafter as the “Resale Contract”), at the same percentage rate, thus creating a “commission in perpetuity” to the Artist and his or her inheritors (referred to hereafter as “Inheritors”). The Resale Contract will be identical to this contract except that the first sentence of the Resale Contract shall be replaced by the sentence:

‘I, ______, the current owner of the artwork identified as ______, created by the Artist ______, (referred to hereafter as “Artist”), do hereby sell this artwork, for $______ dollars to customer ______ (referred to hereafter as “Customer”).’

This contract and all following resale contracts shall have no expiration date and shall be in effect in perpetuity. After the Artist dies, the commissions shall go to each Inheritor in turn. If there are no Inheritors, proceeds will go to the following charity ______, as defined by the Artist. If the charity does not exist at the time of any future sale, and there are no Inheritors, the courts shall distribute the profits to a similar charity.

This contract shall include derivative profits from art posters and other uses that provide profit to the Customer or Future Owner of the art piece. The Customer or Future Owner shall pay 10% of all derivative profits to the Artist or the current Inheritor on an annual basis.

The above contract may seem unusual, to say the least. Yet, why shouldn’t artists and their inheritors profit from the sometimes gigantic sums paid for the artist’s work, long after the original sale? As a society, we’re grateful (usually) for the existence of beautiful and fine art. Let’s help artists in their work by encouraging them to adopt some form of the above contract as a new standard - a “commission in perpetuity”, or perpetual royalty.

To all the artists out there: don’t wait for this standard to evolve! I recommend that you adopt the above contract with your very next sale. To all the owners of works of art that are selling their works for gigantic (or small) profits: why not adopt the above contract so that the living artists or their inheritors can benefit from the ongoing profits from the sale of their art? It’s an “outrageously moral” thing to do. May God bless artists and the world of art!

As a disclaimer, I’d like to say that my proposal has nothing to do with my mother’s art or its resale. I have no personal ax to grind and am not a “disgruntled inheritor”.

Peter Falkenberg Brown is passionate about writing, publishing, public speaking and film. He hopes that someday he can live up to his favorite motto: “Expressing God’s kind and compassionate love in all directions, every second of every day, creates an infinitely expanding sphere of heart.”

~ Deus est auctor amoris et decoris. ~

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