The following contract is a revision of The Artist’s Reserved Rights Transfer and Sale Agreement created by conceptual art curator-publisher Seth Siegelaub and lawyer Robert Projansky in New York in 1971. The “Artist’s Contract,” or “The Projansky Agreement,” as it is known in art and legal circles respectively, is a model contract for artists to use when selling their work or transferring ownership. Its most enduringly controversial aspect is the inclusion of an artist’s resale royalty.Kadist has commissioned lawyer Laurence Eisenstein to help us in reimagining and updating the contract’s resale royalty clause to redistribute the royalty to a charitable organization designated by the artist. In this way, the wealth created by the resale of an artwork might serve a general good, as a future investment in organizations that exemplify the values of the artist. Artists need only fill out this page, click save, and then print.
Just as the original Agreement was developed in response to the inequities and financial realities of the art world of 1971, this 2019 version addresses prevailing imbalances and economic conditions of the art world at present. Much has changed in the intervening half-century. Once considered a close network of urban centers, the art world has ballooned into a global art industry as auction houses, powerful galleries, art fairs, and contemporary art institutions have proliferated around the world. The scale of the art market has swelled in turn. In 1971, sales of contemporary artists’ work at auction was not yet expected practice, but now five or six-figure hammer prices deemed scandalous then seem inconsequential today (even when adjusted for inflation). Instead of the friendly relationships Siegelaub highlighted as central to the art market, today’s heightened embrace of art as an investment has led to a greater number of collectors acting more as financial speculators than engaged participants. Sales in the global art market in 2018 exceeded $67.4bn, with sales in the U.S. reaching a record high of $29.9bn.1 Although the 2009 recession slowed art commerce briefly, the market’s recovery resulted in financial gain for its upper tier with the majority of capital in the art market increasingly concentrated at the top, leaving a rapidly shrinking middle—not unlike the wealth disparity among the greater economy. Less than 5% of galleries are now responsible for over 50% of the value of sales by art dealers. This imbalance is most explicitly exhibited by the growing secondary art market, as dealers working in the secondary market exclusively have a median turnover 10x that of dealers selling only in the primary market. These developments diagram an art market that functions by accumulating and recirculating wealth at the top.
Created for this new context, this agreement is a way for artists to redirect the flow of that money, enabling it to make a positive contribution. It is an opportunity for artists to have a say over how the value their work produces is circulated, and for whom their work produces wealth.
Although there are many differences between the 1971 and 2019 Agreements2, their essential structure is the same. The terms set by the artist and agreed to by the collector at the first transfer of an artwork carry forward as covenants: terms effectively fixed to an item of property and that govern its use throughout all future stages of ownership.
The revised Agreement contains only ten articles, a reduction that is largely the effect of changes in United States law since 1971; at the time, artists received no moral rights protections (VARA) and far weaker copyright protections. Notably, the revised contract does not contain the 1971 Agreement’s provisions for granting artists a percentage of any income for rentals or loans, nor does it give the artist the right to borrow the work. It also does not require collectors to obtain the artist’s approval of exhibitions—an article that proved a continual hurdle, especially in the case of sales to museums, and which artists using the 1971 Agreement frequently omitted. If the artist wishes to add these provisions, or any other specifications for how their work should be exhibited, resold, loaned, and so on, they can be written in as additional clauses or stipulated in an attached amendment.
The 1971 Agreement contained a template Notice that artists were to cut out and attach to their artwork or an accompanying certificate, putting buyers, sellers, and exhibitors literally “on notice” that the work was subject to the conditions in the Agreement, thereby physically tethering the legal promises and interpersonal expectations articulated in the Agreement to the work itself. The Notice has been omitted in this revision due to its impracticability (especially with regard to works of video or installation), but its terms are no less binding upon collectors, and the contract’s covenants are no less attached to the work.
At the foundation of both Agreements is the recognition by Collector and Artist that “the value of the Work” “is and will be affected by each and every other work of art the Artist has created and will hereafter create.” Artist and collector both acknowledge that artworks are contingent upon the ever-fluctuating value of all other works the artist produces—suggesting too that the artist’s continued labor impacts that changing value, and, by extension, that the artist themselves is affected by that changing value in turn. Most artworks, however, do not increase in financial value over time.
While one might imagine a scenario where the collector recognizes the value in contributing to a charitable organization (benefiting for example: ecological stewardship, the protection of animal rights, disaster relief, or area food banks) as additional incentive, collectors may be reminded that that the 15% royalty paid to a charity is also tax deductible—provided the organization chosen by the artist is a legally recognized 501c3 (in the US).
Siegelaub was careful to stress the importance of the relationship not only between artist and collector, but between artist and dealer. Some of these considerations are still worth heeding today, for as Siegelaub stressed, it will often be an art dealer and not the artist who is responsible for presenting and negotiating the Agreement with a potential collector, and they must feel supported and empowered in the risk that they take, (alongside the artist) in doing so. As Siegelaub suggested, it might be reasonable to compensate the dealer with a portion of the 15% royalty. Or, if the dealer wishes, they too may have a charitable organization in mind to which they would like to direct a portion of the royalty. Furthermore, Siegelaub also suggested that when an artist moves on to a wealthier gallery, they could still direct a portion of their royalties to the dealer who executed those primary sales.
Users of either Agreement should also take note of the leeway invited in Article Three, “Price/Value,” where the sale price could be entered, or the fair market value of an item for which the work might be bartered or otherwise exchanged. The resale royalty also need not be paid in money, and could also take the form of an equivalent trade or in-kind donation.
Artists should keep in mind that if they reside in a jurisdiction where resale royalties are paid to artists by law, they may be subjecting collectors to a double royalty, and therefore may wish to amend the Agreement with a line clarifying that the royalty they receive through this Agreement supercedes any similar royalty required by law. It is important for artists to think carefully about the charitable organization they choose to receive the resale royalty. It’s possible that a collector might be interested in your work, but disagree with the mission of the chosen charity. Artists may therefore wish to negotiate their selection, or even involve the collector in choosing a charity. Moreover, philanthropic endeavors are not always innocent, for they can be manipulated as tax havens or for public relations art-washing, among other abuses. This Agreement is merely one strategy among many for establishing more equitable flows of art market capital.
The sheer force and velocity of the secondary market has made sales contracts more common, but they are still not the norm, and resale royalties remain taboo. Typical clauses in such contracts grant galleries and artists the right of first refusal on resales, or place limits on the time between a collector’s purchase and when they can resell a work. Although these terms may fulfill certain aspects of the 1971 Agreement’s charge, they rely upon and even amplify the artist’s (or their estate’s) position as the central force which all accrued value gravitates back towards.
In the 1971 Agreement, an emphasis was placed on the individual artist’s ability to share in the profits from resales. One of the central criticisms of the 1971 Agreement was that its resale royalty only rewarded individual artists who were likely to already have some form of financial success given that their work had now increased in value in the secondary market. When artists’ prices rise in the secondary market, their primary market prices (of which the artist typically receives 50%) also rise. That scenario is not true for all, but it is crucial to note that this has been the most vocalized criticism of legislated resale royalties, which can tend to reward wealthy artists, sometimes at the expense of other forms of legislation that might aid a greater population of artists.
The 1971 Agreement’s emphasis on the individual was also criticized by members of the Art Workers Coalition for ignoring models of redistribution, for although resale royalties were seen as an important step in establishing an equitable art economy, the AWC also demanded that a royalty from the sale of deceased artists’ works should be collected and redirected to artists who were financially precarious, including in the form of an emergency healthcare fund. Even then a resale royalty was not viewed as an end in itself, but instead as a temporary solution for establishing equanimity while working towards broader and more radical goals.3
Redistribution has been at play in the resale market in less visible ways for some time however, primarily via artists’ philanthropic foundations, who recirculate profits from increasing market prices into grants and other forms of support. Indeed, this new Agreement has been inspired by the rise in artists’ foundations, and artists’ desire for a percentage of their sales to be directed back to their foundation. Joan Mitchell and Andy Warhol among many others established charitable foundations that provide ongoing support for artists. Other artists have created charitable organizations that provide funds for artists’ medical and other types of expenses, as inRobert Rauschenberg’s Change Inc., to which Rauschenberg suggested collectors should direct a portion of their profit from reselling his works.4 In other examples, artists have explicitly required collectors of their work to give a portion of resale profit to a charity, as in Nari Ward’s edition Take My Hand (2019) for which all sales proceeds and all resale profit must be donated to the Bowery Mission, and Cady Noland’s truncated version of the 1971 Agreement that calls for 15% of any gross resale profit to be donated to Partnership for the Homeless.5 Artists have also produced iterations of the 1971 Agreement that expand its original premise to also target imbalances in the art market disfavoring women artists and artists of color. Alex Strada has devised a version where 15% of resale profits must benefit another emerging female artist, arkadi lavoie lachapelle has introduced a revision where 100% of resale profit returns to her, and Adrian Piper uses a shortened version of the Agreement along with an exhibition agreement stating that no discounts shall be given on individual works since they are “already subject to the 50% Off Black Artists Discount and the 25% Women Artists Discount.”6 Our revision builds upon these efforts as inspiration in addressing the unfinished project of redistribution that was central to the climate from which the 1971 Agreement was produced.
— Lauren van Haaften-Schick, 2019
When taking up the lessons and tools of the past, we risk conflating previous conditions and realities for those of the present. It is worthwhile then to view this revision not as a mere derivation or update, but as a new translation, where translation is understood not as establishing equivalence but as revealing difference and even incommensurability between contexts. In attempting to thread this historical document through the social-economic and legal conditions of the art world at present, this translation also carries with it the hopes, demands, and meanings of the past. It also reflects the ways in which those hopes have gone unrealized, their project left incomplete. Revisiting those demands, as this new Agreement does, will hopefully also produce new problems. As Siegelaub did, we encourage subsequent revisions in response.
1. Clare McAndrew, The Art Market 2019: An Art Basel & UBS Report (Basel: Art Basel and UBS, 2019). All data cited comes from this source.
2. Despite the fact that the 1971 Agreement was designed to become a new standard, such that its protections would benefit all artists, its terms remained rooted in the rights of individuals and directed for the benefit of single artists. This revision re-orients the terms and principles of the 1971 Agreement away from individual gain and towards redistribution, benefiting groups.
3. “NAWC to Issue New Contract,” Art Workers Newsletter 1, No. 3 (May 1971): 4.
4. Robert Rauschenberg, statement on art auctions, “Response to Rita Reif, N[ew] Y[ork] T[imes] 11/14/88” Typescript, 1 page, Robert Rauschenberg Foundation Archives, https://www.rauschenbergfoundation.org/art/archive/a17.
5. Joan Kee, Models of Integrity: Art and Law in Post-Sixties America (Oakland, California: University of California Press, 2019), 251 n. 64.
6. Maria Eichhorn, “Interview with Adrian Piper,” in Maria Eichhorn: The Artist’s Contract: Interviews with Carl Andre, Michael Asher, Daniel Buren, Paula Cooper, Hans Haacke, Jenny Holzer, Adrian Piper, John Weber, Lawrence Weiner, Jackie Winsor, ed. Gerti Fietzek (Köln; New York: Walther König, 2009), 192–215.