Friday 21 December 2012


Starving artists or hungry heirs?

Art lovers might have noticed the appearance of a new copyright notice on some auction catalogue illustrations ‘©the estate X/DALRO’ . The most recent issue of the SA Art Times (Dec 2012-Jan 2013) explains this here ( Michael Coulson “Behind the DALRO copyright campaign” at 7). DALRO (Dramatic, Artistic and Literary Rights Organisation) has started to manage the reproduction rights of art works by a number of deceased and living artists.

The Copyright Act 98 of 1978 grants a copyright owner of an artistic work the exclusive right to reproduce, or authorise the reproduction of the work in any manner or form (s7(a)). DALRO interprets this as permitting the artist or his or her estate, as copyright owner, to charge for reproductions of the work for resale purposes. According to Coulson, an alternative interpretation is that, when an artistic work is sold, the artist grants an implied licence permitting the purchaser to advertise the work for resale. This permission is formalised in legislation elsewhere. For example, section 63(1) of the UK Copyright Act 1988 pertinently provides that it is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work.

As usual, there are arguments for both sides. DALRO, and by implication the artists, argue that levying a charge for reproduction ‘provides visual artists with the only financial reward they’re entitled to once they’ve sold a work of art’. Together with this, it is argued that, as South Africa has no ‘resale right’ which entitles an artist to a percentage of any subsequent sale, this reproduction charge should be viewed as some recompense.

Contra, is the fact that this adds to the cost for auction houses although, given the amounts involved, it is probably more of an irritation than a vast expense. Also, the only artist whose works are regularly used as cover illustrations for catalogues will soon no longer enjoy copyright protection - Irma Stern died in 1966, so protection will end in 2016.

So what is the fuss about? For me, the answer has more to do with art than copyright.

An artist needs publicity – without this, there will be minimal sales. Arguably, publicity on resale does not benefit the artist, but the fact of a successful subsequent sale enhances the value of other works by that artist. So, for a living artist, the benefit of publicity will be apparent at later sales by him or her. For the estate of an artist, only the first point is relevant, but equally, without positive publicity, the artist’s reputation will shrivel away.

Other arguments are apparent from the same issue of the Art Times. Piet Viljoen, opening a new contemporary art museum in Cape Town, said that ‘[f]or a real investment value determines price, while for art price determines value. As a result, most art will never – and I do not use this word lightly – show any return at all, except possibly a negative one.’ (at 14). Most purchasers buy art because it gives pleasure, and because for them it has an intrinsic value. It is not bought with the thought of resale, or as an investment. And most of it does not increase in value – wander round any English stately home and look at the acres of what were expensive works at the time, that now have no greater financial value in real terms than at the time of purchase. Collectors who buy from an artist before he or she is recognised, buy because the work has value for them, not because it will increase in value. And when works are bought once an artist is famous, he or she does receive the financial advantage that publicity has occasioned.

So it is possible that demanding a royalty for publication for resale purposes is a case of killing the golden goose – when the publicity is absent, the sales will disappear. As Michal Coulson points out, the leading South African auction house, Strauss and Co, has not featured Irma Stern on a cover since DALRO demanded royalties.



Subscribe via email (you'll be added to our Google Group)