The following contract is a revision of The Artist’s Reserved Rights Transfer and Sale Agreement created by conceptual art dealer-curator 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 clause calls for an artist’s resale royalty. Kadist has commissioned lawyer Laurence Eisenstein to help us reimagine and update the contract’s resale royalty clause to redistribute it as a tax-deductible donation 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 “some generally acknowledged inequities in the art world,” this revision addresses prevailing inequities and economic conditions of the present.1 Much has changed in the intervening half-century—the art world has ballooned into a worldwide industry and the art market has swelled in turn. Sales in the global art market in 2018 exceeded $67.4bn, with sales in the United States reaching a record $29.9bn.2 In 1971, auctions of contemporary art were still controversial and uncommon, but soaring hammer prices deemed scandalous then are now expected, and today’s heightened embrace of art as an investment has led to more financial speculation and less personal and cultural engagement by collectors. Since the 2009 recession, the majority of capital in the art market has been concentrated at its upper tier leaving a rapidly shrinking middle—not unlike the wealth disparity apparent in 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 explicit in the growing secondary art market, and especially its auction sector, where between 2008 and 2018 the number of works sold for over $10 million increased by 133%. 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 produced by their work circulates, and who benefits from that value.
The Agreement must be signed by the artist and collector at first sale or transfer of ownership. In all subsequent resales or transfers, the seller and new collector/transferee complete and sign the TRANSFER AGREEMENT AND RECORD found at the end of the contract.
Although there are many differences between the 1971 and 2019 Agreements, their essential structure is the same. The terms set by the artist and agreed to by the collector at the first sale (or transfer) carry forward as covenants governing the artwork’s use through future stages of ownership. The revised Agreement contains only ten articles, reduced from nineteen in the original. This is largely due to changes in U.S. law; in 1971 artists received no moral rights protections (VARA) and did not automatically retain copyright. Notably, the revised contract does not contain the 1971 Agreement’s provisions for granting artists a percentage of any income from 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 to exhibit the work publicly. If you wish to add these provisions, or any other specifications for how your work should be exhibited, resold, loaned, and so on, they can be written in as additional or amended clauses, or stipulated in an attached amendment. Likewise, you can copy-paste this contract into a separate document and remove sections, as needed.
The 1971 Agreement contained a Notice template that artists were to cut out and attach to their artwork or an accompanying certificate, putting buyers, sellers, and exhibitors “on notice” that the work was subject to the conditions of the Agreement. The Notice has been omitted in this revision due to its impracticality (especially with regard to video or installation), but the contract’s terms are no less binding. If you use certificates of authenticity we suggest indicating there that your work is also accompanied by this Agreement.
It is important for artists to think carefully about the charitable organization they choose to receive the resale royalty, indicated in ARTICLE TWO. It’s possible that a collector might be interested in an artwork, 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. While one might imagine a scenario where the collector recognizes the value in contributing to a charitable organization (benefiting for example: ecological stewardship, animal rights, disaster relief, or area food banks) as additional incentive, hesitant collectors may be reminded that the 15% royalty donated to a charity is also tax deductible—provided the organization chosen by the artist is a legally recognized 501c3 (in the U.S.). Of course, 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 bond between artists and collectors recognized here is vital, as is the relationship between artist and dealer. Because it will often be an art dealer and not the artist who is responsible for presenting and negotiating the Agreement with a potential collector, dealers 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 to make them an ongoing beneficiary so they continue to be rewarded for those early sales even if the artist moves on to a larger gallery. Or the dealer may have a charitable organization in mind to which they would like to direct a portion of the royalty. Artists may also prefer to retain a portion of the 15% for themselves.
If artists reside in a jurisdiction with resale royalty legislation, 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 supersedes any similar royalty required by law.
Agreement users should also take note of the leeway invited in ARTICLE THREE, “Price/Value.” Here the sale price could be entered, or the fair market value of an item for which the work might be bartered or exchanged. The resale royalty also need not be paid monetarily, and could take the form of an equivalent trade or in-kind donation.
The terms of the Agreement are binding until the expiration date indicated in ARTICLE SEVEN. However, artists may wish to encourage collectors to continue resigning it past the expiration date to maintain a provenance record, and as an ongoing reminder of the ethos underpinning the initial contract.
At the foundation of both Agreements is the recognition by all parties 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” and that they “wish the integrity and clarity of the Artist's ideas and statements in the Work to be maintained.” With regards to the 2019 revision, that premise could be interpreted as including the contractual terms affecting the work, which commits collectors–and artists–to redistribution as a principle and practice.
The force and velocity of the secondary market has made sales contracts more common, but they are still not the norm. Typical clauses now grant galleries and artists the right of first refusal on resales, or limit the time before a collector can resell a work. Resale royalties remain taboo.
One of the main criticisms the original contract received was that its resale royalty chiefly rewarded artists who already profited from high primary market prices, tied to their increasing secondary market prices. This is also a common criticism against resale royalty laws that benefit individuals. While data shows that artists at all economic strata benefit from such legislation,3 the U.S. still lacks resale royalty laws.
Despite the fact that the 1971 Agreement was designed to become a new standard, thereby helping 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 original away from individual gain and towards redistribution, benefiting groups through charitable organizations.
Redistribution has been at play in the resale market in less visible ways for some time however, primarily via artists’ philanthropic foundations. This new Agreement is inspired by the rise in artists’ foundations, and artists’ desire for a percentage of their sales to be directed back to their foundations. Andy Warhol and Joan Mitchell among many others established charitable foundations that provide support for artists’ practices and disaster relief. Robert Rauschenberg requested that collectors direct a portion of their profit from reselling his works to his organization Change Inc., which assisted artists with emergency medical and living expenses.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 target gender and racial economic disparity in the art market, as in Alex Strada’s Artist Contract (2017) requiring that all appreciated value in her sold artworks is reinvested into the work of an emerging female artist. Our revision builds upon these efforts as further inspiration for addressing the unfinished project of redistribution that was central to the climate from which the 1971 Agreement was produced. It is a legal tool for artists to secure some ongoing rights in their work, and a model for how the value their work produces could circulate in other ways.
— 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 socio-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. Seth Siegelaub and Robert Projansky, The Artist’s Reserved Rights Transfer and Sale Agreement (School of Visual Arts, New York, 1971). 1.
2. For data cited see: Clare McAndrew, The Art Market 2019: An Art Basel & UBS Report (Basel: Art Basel and UBS, 2019).
3. See recent studies by the UK Design and Artists Copyright Society: https://fairshareforartists.org/facts-and-figures/
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.