Re: droit de suite

On Sat, Apr 01, 2000, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> On 04/01/2000, Larry Weiss <pgw[_at_]idt.net> wrote:
> >
> > The "high dudgeon" is because the proposed legislation would form
> > a compulsory partnership between the owner of the work and the
> > person from whom he thought he bought it.
>
> I don't see how this differs from the licensing of computer software,
> which establishes a compulsory relation ship between buyer and seller.
>
> I think the underlying issue is that you want to reduce any work of
> art to no more than the meanest commodity, a mere case of mayonnaise.
> Buy the Mona Lisa and it's your your yours. By your reasoning you
> now have the "right" to destroy it, alter it, change the signature
> to your own, deface it, forbid others to see it, forbid photos being
> taken or reproduced, efface all memory that it had ever existed.
> You're taking a position antipathetic to art and what you're
> basically asserting is either that anything can be bought or that
> whatever can't be commodified doesn't deserve to be considered. Or
> you regard your perceived "rights" as superior to the right of others
> because your "rights" would be backed up by money.
>
> I notice that for you art is even less than the meanest commodity.
> You have a perceived "right" to make a profit on art, and you ask
> whether the artist should be compelled to reimburse you should you
> resell the painting at a loss. I'm not sure what the basis is in
> law for your asserted "right" to make a profit on art. As I
> understand the uniform commercial code, buying a case of mayonnaise
> conveys no "right" to resell that case of mayonnaise at a profit.
>
> I surely don't know how these "rights" you're asserting would fare
> in the courts, as the law seems ambiguous in this area. And, anyway
> you haven't put your money where your mouth is by buying a famous
> painting and destroying it to show that this is your "right." So let
> me just sketch the opposing view: that there actually are values in
> life other than money. I'm sure you're aware that art is kept in
> museums for the benefit of people who like to look at it, and who
> don't feel any particular urge to own it. We might imagine a
> delegation of these people gathering, perhaps accompanied by the
> ghost of the artist. They're asking you to spare the Mona Lisa as
> you're about to put it to the torch. Very heart rending. But not
> much room for dialogue. You of course respond, "tough luck, I own
> it; it's my right."
>
> Something similar comes up fairly often, though the owner is generally
> less adversarial than you. An owner wants to sell out of the country
> a work regarded as a national treasure. The owner in many or most
> cases is cooperative with fund-raising efforts that seek the end of
> buying the work in order to keep it in the nation. But this is a
> simple buy-sell situation where the owner just wants his money. My
> sense is that you want more -- that it's important to you to show how
> much contempt you have for art and artists. Certainly many people
> feel this way, and as you're not asserting a right to buy churches
> or hospitals to burn them down, it might be particularly art and
> artists that you see impinging on your "rights" in some way you resent.
>
> My point, in any case, is that not everyone sees it as you do. I
> don't happen to think the uniform commercial code works for art, or
> that it's advisable to demote art to the standing of no more than a
> speculative commodity. We should ship you back to medieval India,
> where the Taj Mahal was so beautiful that the Shah put out the
> architect's eyes, to prevent his ever building anything else as
> beautiful. The Shah was in control, and figured this was his "right."
> Unfortunately, we don't have much basis in law today for backing up
> your perceived "right" to make a profit on art by, say, cutting off
> the hands or putting out the eyes of any artist (or any stockbroker?)
> so base as to sell you anything you might have to resell at a loss.
>
> By the way, do you actually buy and sell art, or is your passion
> in this area largely theoretical? You maybe ought to consult your
> financial adviser, as I understand there's much more money to be
> made at the moment in internet startups than one could ever hope to
> bleed out of art. If the auction houses haven't affiliated with
> discount brokerages to date, I'd expect to see this in the near
> future. I personally wouldn't consider it a catastrophe if they
> got out of the art business altogether.

1. The software contract is entered into at the begining of the relationship "voluntarily." This sort of legislation is shocking in that it comes in after a bargain has been made and changes the terms of that bargain. Now that you bought your computer and licensed the software the computer manufacturer gets a law passed that requires you to pay an additional annual fee for the hardware. And the software license you bought will now have to be renewed annually instead of being paid up. That is how this looks to lawyers.
2. For the purposes of the law, the Mona Lisa is either a piece of painted canvas or a national monument. Other lesser know pieces of art, like the hand blown glass bowl my wife bought several years ago in San Francisco, are simply glass bowls. Of course the glass bowl on display in the white house may be a national monument, i'm not sure.
3. If I break my wife's glass bowl do i owe you something? The world? The country? The Artist? (BTW the law is not ambiguous here, I would only owe my wife, and owe I would) I don't understand this logic. Not all art is a national monument. Most art has incredibly low value. The glass bowl is art. But if I were to sell it at a garage sale for $5 would I have to track down the artist and give him $0.20? The problem with this legislation is that it attempts to solve a problem that effects a small minority of art by imposing a law on all art. This brings out another problem: what is art? are collectibles art? From my wife's one of a kind glass bowl to the bowl I ate my cereal out of this morning there is a wide range. There are some china bowls that are more valuable and some handmade bowls that are more artistic. All of these are collected and traded, few in the auction houses, which are art?
4. Not everyone who disagrees with this law hates artist. I have two cousins who work incredible hours to survive as artists. The fact is that this law would likely help neither of them. If they become popular they will make plenty of money. If they are not vogue they will survive as they do now. A law like this would likely cause them problems. The contracts they have to do comercial art would become more cumbersome and problematic.

Keith Taber
<keith[_at_]drylaw.com> Received on Tue Apr 04 2000 - 15:27:13 GMT