The biggest advantage to those who champion
ARR is that so few people really understand it
One of the first issues to be raised in post-Brexit discussions with the art market was the long-running sore of Artist’s Resale Right.
Introduced in two stages (2006: living artists; 2012: artists’ estates for up to 70 years after their death), the combination of charges and red tape made it all but universally unpopular among auctioneers and, especially, dealers.
Artists, the collecting agencies who stood to benefit more than anyone and various others saw it as overdue compensation for those whose work goes on to sell for huge sums without them benefiting further.
The message in brief: Why shouldn’t artists share in the benefits their art brings to others?
Now that the UK is heading for the door, will this law – the result of a European Union harmonisation directive – survive?
Difficult to say, but with everything else on the agenda, scrutiny of it is hardly likely to be a Government priority.
Failing the fairness test
As someone who spent many years campaigning against the introduction and then extension of ARR, I have always believed that it is not only detrimental to the art market, but also to artists. I also think that it fails the fairness test completely in the way it is structured. The problem is that so few people understand its scope and impact that, as with many other measures that should never have made it onto the statute book, they can’t see why art market professionals have any reason to object to it.
Let’s try to clarify that with a few facts:
- ARR has nothing to do with copyright, which is an entirely different right subsisting with the artist for their lifetime and to their heirs for 70 years afterwards.
- It is charged every time a qualifying work resells in the commercial marketplace.
- ARR applies to qualifying works three years after the original sale when the price is the equivalent of €1000 or more and immediately if it is €10,000 or more.
- ARR is not charged as a percentage of profits on an artwork, but as a percentage of the entire price when the art is sold in the commercial marketplace.
- As long as the artist qualifies for ARR and the price is above the qualifying threshold (€1000 or equivalent), the charge applies, even when the seller makes a loss.
- ARR cannot be paid directly to the artist but must pass through one of the two collecting agencies that administer it in the UK, The Design & Artists Collecting Society (DACS) or the Artists Collecting Society (ACS), which each charge 15% of the sum collected in fees, except on overseas sales, for which they make no charge. Originally DACS wanted to charge 25%, but this was reduced in line with the ACS prior to ARR coming into effect in 2006.
- ARR is an inalienable right, which means a qualifying artist cannot opt to waive it, regardless of whether they think it is unfair or risks damaging the market for their work.
- Those involved in the transaction are jointly and severally liable for paying ARR, although in practice the auction houses pass on the charge to the buyer, while only some dealers pass it onto those who buy from them. This means dealers suffer from ‘double dip’ payments – one on buying and one on selling. So a levy across the deal can be as much as 8% of the entire price.
- There is no definitive list of qualifying artists.
- Failure to meet your obligations under ARR rules risks a criminal charge.
- The collecting agencies hold no liability for their mistakes, even if you are the loser as a result.
- If a collecting agency accepts an ARR payment for a transaction that may not qualify, or for which the artist or their heirs cannot be traced, they can keep the money for up to six years before returning it. In doing so, they still charge their 15% fee and keep all the interest accrued.
- ARR is primarily supposed to help poorer artists as they establish their careers. However, the vast bulk of sums collected go to the most successful and richest artists and their estates.
- 30% of all monies distributed go to artists’ estates.
- ARR is capped at €12,500 on any single work of art.
- ARR rates apply as follows: 4% from €1000-50,000; 3% from there up to €200,000; 1% from there up to €350,000; 0.5% from there up to €500,000; and 0.25% above that to the cap. The scale is cumulative, so on artworks selling for more than €500,000, you pay ARR according to the scale of rates up to that point.
- ARR applies to the hammer price for auction sales.
- The UK Government went against its own policy by ‘gold-plating’ the threshold at which ARR should apply. The EU directive stipulated that it did not have to apply under €3000, but the Government went further than that by reducing the threshold to €1000. Originally, the Government had actually campaigned in Europe for the threshold to be raised to €5000.
- Dealers complain as much about the paperwork involved as the fee.
- Failure to comply with the directive and pay ARR meant that many dealers could not show its impact when the UK Government carried out its impact study into ARR at the end of 2013.
- By DACS’ own figures, it has charged over £7m in ARR fees over the past ten years. If its overheads (taking into account other revenues it raises) are lower than this, then it may be not-for-profit, but will certainly be banking a healthy surplus.
- I have never made a penny out of ARR and have no financial or other material advantage in arguing my case.
All of the above is quite a lot to take in. People will argue the fairness of the concept of ARR till the cows come home and still not agree. However, a number of things concern me.
The first is that ARR in the UK has never met the terms of the directive that imposed it on the market. It is not harmonised with other ARR programmes across the EU in terms of thresholds and application. It is not supposed to continue if global harmonisation fails to take place (it has failed and is unlikely ever to take place, as recent events in the US show), yet there appears to be no political will by those who imposed it on the market to meet these terms.
It is not in the interests of the market, which is put at a competitive disadvantage in relation to the other leading global art markets (US, Hong Kong, Switzerland), which have not adopted it.
It acts against the interest of artists trying to establish themselves in the market because dealers are less likely to take a risk in buying collections of their work for resale, giving them a lump sum in the process. Now, most will only sell on commission, allowing fewer artists to rely on this as a source of income.
Most of all, though, I have found that almost no one I talk to about ARR understands it fully and accurately.
Of these, nearly everyone who is not a dealer or auctioneer thinks it is a levy solely on profit. Not one – artists included – thinks that paying it as a percentage of the entire price is fair. No one at all thinks that it is fair that it should be levied even if the transaction makes a loss – not even DACS could come up with an argument for that one when I first asked them about it shortly after its introduction.
A practicable solution that better meets the fairness test
The only argument for these conditions is that it makes it practicable to collect the levy. If you were to charge 4% above €1000 for an artwork where the profit was, say, €100, then ARR would be just €4. From that the collecting agency fee would be €0.60. In this case it would probably cost more to administer and distribute the levy than the sum raised by it.
However, the driving argument by the collecting agencies and the supporters of ARR has always been one of fairness. If fairness trumps all, then make it truly fair. This can be done by raising the threshold to where it should have been in the first place and charging only on profits. The flat rate percentage charged by the collecting agencies allows them to subsidise loss-making distribution activities at the lower end of the scale with the large surpluses made at the top end of the scale, a fitting arrangement for the self-declared not-for-profit organisations.
To my mind, it would also be fairer to poorer, less established artists who might, once more, find a healthy level of patronage among dealers willing to take a risk on them by purchasing collections up front and giving the artists lump sums to work on their next phase. Don’t forget, those same dealers invest considerably in helping boost the artists’ reputations. Successful artists’ reputations are rarely built in isolation, so why would you want to penalise the very people who can make it happen for them.
Do I think anything will change?
Probably not. All I hope is that those who declare ARR a great idea are fully aware of its parameters and potential consequences. I have been looking at them closely for almost 20 years and still can’t see how fairness or common sense applies.
How the BBC reported the death of Hugh Scully yesterday.
When Hugh Scully left Antiques Roadshow to launch his online valuations business, it was doomed from the start, as I realised at the press launch
It is 16 years almost to the day since Hugh Scully announced that he was to be the face of Hugh Scully’s World of Antiques, a new online valuations service for internet auction house QXL.com
In what appeared to be an unrivalled coup at the time, the five-year deal was set to net the Antiques Roadshow presenter £3m, made up of an initial payment of £700,000 paid through his production company, Fine Art Productions Ltd, and a further £2.3m profit share, payable on the service’s launch in 2000.
The fact that QXL offered him the chance to take £2m of that money in shares instead of cash illustrates how bullish internet start-ups were as they rode the crest of the first wave of development of what we called the Information Superhighway.
If other plans for the show seemed ambitious at the time, they appear astonishing now, and only serve to illustrate the general naivete of attitudes to the internet in 1999. Scully’s plans included a daily antique auction, collectors’ club and chatroom.
Whether he opted for the shares rather than the cash remains unclear – did they ever reach the 195p option price? – but he was the envy of just about every auctioneer and dealer in the land, and one could only admire his acumen.
However, what was clear to me from the start was that the service simply wouldn’t work.
Food poisoning and the press
It did not augur well when the first of two press launches, held at one of London’s smartest restaurants, ended in mass food poisoning. (It was a reminder, if one was needed, of just how ready investors at the time were to splash the cash, no questions asked.)
Fortunately for me, I had chosen to forego the feast in favour of the second press launch, the next morning, in an internet café on Golden Square. There I spent a couple of minutes interviewing Scully, who was evidently still suffering the effects of the previous night’s debacle and could barely make it through.
It’s astonishing now to recall just how naïve the business model was for the QXL service, but even then it immediately rang alarm bells, especially as it was billed as an all-in-one automatic service, something it plainly wasn’t.
The premise was that those wishing to have objects valued would take a photo, have it processed at a well-known high street store (i.e. Boots) and then email a digital version of the image to QXL who would employ a legion of specialists all over the world to value the item on the basis of the photo.
Quite simply, this was an idea way too ahead of its time, an irony as Scully’s death comes just weeks after Auctionata announced they were buying online valuations service ValueMyStuff.
Three questions which showed Hugh Scully’s project would not work
The answers to three questions I asked Scully that day meant that I left Golden Square certain that the project was doomed. The first was how potential clients got hold of a digitalised image – this was in the age before digital cameras and email saturation.
His answer was that they would take their photo down to a high street shop and have it scanned in before having the digitalised version emailed back to them.
The second question was: Had the deal been done with the high street chain? Answer: Not yet.
The third question sealed its fate in my mind: How much was all this going to cost?
When I added up the initial price of having a film developed – 24 or 36 images printed up at one go was the norm then – the charge by the high street chain of digitalising the image and emailing it to the client, and then the cost of the valuation itself, it struck me that the whole process would come to a minimum of £25 to £30 per client valuation.
Add to this the widespread lack of access to internet services and email, especially among those who had both the objects to value and the money to pay for such a service, as well as all the hassle of taking the photos, visiting the high street, waiting for the email and so on, and it was impossible to see how the service would ever get off the ground, let alone thrive.
If I could work this out in a couple of minutes, surely others would soon arrive at the same conclusion? But it seemed not.
Three months later Scully was billed as a keynote speaker at the first conference on Internet Options for the Auctioneer at Southampton Institute, where most of the industry declared itself still “bewildered and confused”.
Antiques Trade Gazette Internet Handbook advice
At the same time, I was writing a piece for the second Antiques Trade Gazette Internet Handbook entitled Back to the basics of business: Home truths about global communication.
Having trawled through 700 websites to see what worked and what did not, I had my fill of horrors and frustration, concluding: “…however slick the technology, we should not lose sight of the unchanging truth about business success: the technology is the means to an end, not the end in itself. It doesn’t matter how interactive, flashy or colourful your Website, it is the quality of the goods on offer and the quality of the service the customer receives that will determine its long-term prosperity.”
QXL suspended the antiques valuation site 18 months later, a few weeks before 9/11. The deal with Boots had never come through and the public had not proved the eager early adopters QXL anticipated.
Hugh Scully effectively disappeared from our screens. Many other internet start-ups pretty quickly followed suit. They may have failed, but you have to admire their pioneering spirit, even if, in many cases, business sense had been left at the door.
What they did contribute was the development of caution and a more realistic approach to the boundaries of technology when the second wave started. They also did considerable groundwork in software development from which later ventures benefited.
It was reported that Scully had hoped to retain his Roadshow role alongside the new venture, but it was not to be. I only hope that he made enough from the deal in the end to enjoy a fulfilling retirement.
Practices at the top end of the art market lay it open to the risk of manipulation. But it is the culture that allows this to happen that is the biggest threat
COMMENT: Scott Reyburn, an erstwhile colleague of mine and certainly one of the finest writers focusing on the international art market today, creates an imaginary scenario to illustrate the risks of market manipulation in his September 25 post for the International New York Times.
Titled A Tug of War Over Art-Sales Transparency, it brilliantly illustrates the sort of thing that happens at the top, or even top-middle, end of the art market.
The scenario has a fictional dealer grooming a young artist for stardom and then manipulating auction prices to build the legend around him/her with the help of a few friends before cashing in.
While Reyburn remains enigmatic as to whether this sort of manipulation has indeed happened, I do not. I’m quite certain that it is as accurate a picture as can be drawn of some people’s behaviour in the Contemporary art world.
What is particularly interesting about the piece is that although the scenario focuses on the manipulation of an unscrupulous dealer, it is more concerned with the opacity of auctions at the top end.
“Just what exactly is going on when a dealer tops up the bidding on a young artist in whom he has taken an investment position? And are there conflicts of interest when an auction house shares a financial guarantee with a third party?” he asks.
Serious questions indeed, but actually whether there is a conflict of interest or not, whilst hugely important, in my opinion is of secondary significance in the wider debate over competition at the top end of the Contemporary art auction market.
Loss of perspective is what’s really scary
To me, the really scary part is the loss of perspective at the top; the detachment from the real world and what that means.
It’s scary because it is exactly the same sort of loss of perspective that led to the MPs’ expenses scandal at Westminster, the phone hacking crisis among the British national press and, in years gone by, the groping and worse behaviour of 1970s and ‘80s DJs and TV presenters.
Everyone does it and it goes with the territory so that means it’s ok… doesn’t it?
As I wrote in Antiques Trade Gazette last December, in an article entitled Smoke detectors, the essential tool for Christie’s and Sotheby’s in today’s art market, “as far back as 2011 The Economist reported a list of leading dealers as guaranteeing works at auction. It remains unclear whether the trade are guaranteeing works by artists they represent directly or have a clear financial interest in propping up, but if so, then this is surely a step too far along the road of market manipulation.”
As I argued last December, “It might be clever; it might even be legal, but as far as I (and I suspect the man in the street) am concerned, one thing is certain: it isn’t right.”
The fact that this sort of behaviour is seen as acceptable at the top end of the auction market supports my belief that the pressure to perform in such a highly competitive atmosphere has caused decision makers to lose touch with reality.
““Such loss of objective perspective can make one genuinely consider all sorts of practices normal and acceptable, only to discover in the cold light of day, once the party is over, that the rest of the world deems them anything but.”
Act soon or live to regret it
My view remains unchanged, as does my conclusion:
“The test is: would I feel confident attempting to justify my actions in front of a government select committee or the equivalent committee in the Senate or House of Representatives if they decided to review practices within our industry?”
Having moderated the main debate on market regulation at this year’s Art Business Conference, I am not in favour of outside regulation for the art market beyond what we already have. However, Scott Reyburn, along with my fellow moderator Dr Tom Flynn and fellow panelist the art market lawyer Pierre Valentin, are right in taking a shot across the bows of the auction houses as reminder for them to get their act together.
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