The recent record-breaking auction of the Burr Tatham art collection at Art and Object was a good day at the office for the estate, the auctioneer and the taxpayer - but, sadly, not for the artists.
Buyers paid a total of $18 million and, although the seller's commission was not disclosed, a reasonable estimate suggests the estate will get about $13m, the auctioneer about $4m and $1m will trickle down to the taxpayer as GST and income tax.
Internationally and locally, there is a growing recognition that artists should have an ongoing right to a royalty from the growth in value of their works, and it is more a quirk of technology that paintings do not trigger revenue streams in the way music and film do.
Parked in the dusty shelves of the Ministry of Culture and Heritage is a 2007 report exploring the possibility of a new right to a cultural royalty from resales of an artist's work. I remember it well because I covered the report's release as an arts journalist. The ministry says it remains "committed" to assessing the merits of an Artist Resale Royalty scheme. Perhaps it's time for the bureaucrats to dust off the report and bring the parties back to the table.
Fast forward last month's auction and there's the not insignificant matter of the catalogue which was for sale. It was spread across two glossy volumes featuring images of the artists' works but no copyright reproduction fee was paid to the artists concerned.
Judy Darragh has been working as an artist for more than 30 years and she says it's imperative that artists control their intellectual property.
"We make the work, we don't get paid to make, we have precarious incomes. The art world is an organism with resources which we need to share more than ever, post-Covid. I would love to see artists, dealers, collectors and the secondary market working together to keep this organism humming along."
There are two distinct intellectual property rights at stake here: the licence to copy artworks for catalogues and marketing, and payment to the artists of a percentage of the sale price of the work, which, like a piece of real estate, can be considerably more than the buyer paid for it originally.
"There is some confusion about the role of copyright licensing," says legal adviser and copyright champion Caroline Stone. "It is similar in its financial return to artists as a resale royalty, but they are different rights – one exists under our copyright laws, and the other is a right that could be contractual if artists included it in their sales contracts but otherwise will need the Government to introduce new legislation to create the right."
On the issue of copyright, in New Zealand there is an existing right for artists to licence their copyright for use in auction catalogues and marketing materials, says Stone.
"This is not being enforced because there has not been a collective organisation to enforce it on behalf of artists. By comparison, 83 such organisations exist around the world to collect licensing fees from auction houses internationally."
And unlike many areas of law, when it comes to copying the message is clear: You have to ask first.
Barrister and IP specialist Earl Gray says auction houses' reproductions of artists' works in catalogues, social media, auction reports and websites are likely to infringe the artist's copyright unless one of the permitted uses under the Copyright Act 1994 applies, such as for research and education.
However, given the use of the images is completely commercial, it's unlikely that this would fly as a defence for the auction houses if a copyright infringement action was brought against them.
"The exclusive rights granted to a copyright owner under the Act include making copies of a work and issuing copies to the public. It is an infringement of copyright to do any of the exclusive rights without a licence, [read consent] from a copyright owner," says Gray.
In response to this issue, in 2019 Stone set up the Copyright Licensing arts licence with Copyright Licensing New Zealand (CLNZ) because artists were not receiving the same licensing support as authors and songwriters.
For artist Dane Mitchell, image licensing is essential as the fees collected will benefit a huge number of artists, whereas a resale royalty will benefit a much smaller group of artists.
"Ultimately, it's about equity – there is a larger moral and ethical issue at stake here."
He says auction houses should agree in principle to support copyright licensing and resale royalties.
"I acknowledge that auction houses are a powerful entity and incredibly important in our art ecosystem. Bringing them in to closely align with our values and framework – ethically and fairly – moves them closer towards artists and how we operate. After all, artists are the cultural producers of the objects and images that the auction houses are trading in."
Dane says the adoption of intellectual property rights also simply brings New Zealand into the international standard of practice.
"This is really important. We are not asking for more than we are deserving of. France has had resale royalties in place since 1920."
New Zealand artists and auction houses don't have to look far to see the benefits of adopting the principles: In Australia, there is a successful royalty scheme, but because there is no reciprocal arrangement, there is no obligation for a New Zealand-based artist to receive the royalty from a sale in Australia, so there is no obligation to pay the fee, even though under Australian law it has to be collected.
This anomaly will hopefully be sorted with the United Kingdom under the recent Free Trade Agreement (FTA), says Stone.
"The recent FTA with the UK looks likely to require that NZ does establish a resale royalty in the future, which makes it all the more important that artists set up their ability to enforce their copyright as well."
Naturally, those already sharing in these revenue streams are reluctant to share them with a new face at the table no matter how large the Christmas turkey is. However, the UK adopted this right while being very conscious of London's status as the premier international clearinghouse for art and antiquities. In New Zealand, buyers' premiums were introduced many years ago without scaring off buyers.
CLNZ's Paula Browning says the auction houses are all aware that CLNZ has been signing up artists to their arts licensing scheme.
"The auction houses have seen the terms of the licensing scheme and been offered the chance to provide input and feedback. The issue is there are no practical mechanisms available to a licensing agency, yet, to enforce licences in New Zealand."
Browning says on the resale royalty issue, the Australians' experience is informative:
"Indigenous artists are really benefitting, both from the resale royalty itself and from having a Copyright Agency managing the royalty."
Browning says this has enabled other services for artists to be built on top of the core part of their operation, something CLNZ aspires to do for NZ artists.
For Mitchell, Darragh and other senior artists, including Reuben Paterson, the time is right for action on this and they have started an initiative by launching the Equity for Artists website https://www.equityforartists.com/ and Instagram profile https://www.instagram.com/equity_for_artists/?hl=en
"If you are an artist or someone who simply cares that artists be part of the equation in the sale of their work in the secondary market, then please sign up," says Mitchell.
"We acknowledge auction houses' important role in the arts, and this is not intended to be divisive. But according to CLNZ, the recent Burr Tatham auction at A + O would have distributed an estimated $24,000 back into the hands of artists for the rights to reproduce images of their work.
Josie McNaught is an arts and media lawyer, and a former arts journalist.