Fairchain, a self-described new platform for “granting artists tradable residual rights [emphasis added] to their creative product” is “gaining traction with artists and gallerists,” writes Robin Pogrebin in today’s NY Times.
“Tradable residual rights”? That would seem to be a new version of what we formerly referred to as “artists’ resale royalties” (back in the heydays of lawyer Robert Projansky and accountant Rubin Gorewitz, artists’ advocates referenced at the end of this post). Resale royalties were conditions attached to art sales that were meant to grant artists a share of the proceeds from their works in secondary sales. It’s a concept that I’ve championed, beginning with my early 1970s days as managing editor of the Art Workers News. (You’ll find my name here, on the AWN’s “long and distinguished” list of contributors.)
But while they sound attractive in theory, resale-royalty plans (droit de suite in Europe) have always foundered in the U.S.: Collectors, dealers, auction houses, and even the Association of Art Museum Directors have argued against proposed laws that would alter traditional artworld practices here by requiring sellers to hand over a portion of their take to artists.
Here’s what I previously wrote about California’s now defunct resale-royalties law, which, as Pogrebin noted, “was overturned by a federal appeals court in 2018 on the grounds that it conflicted with federal copyright law.” My chief objection to the California law was that it that it took 5% of the total resale price, not a percentage of profits.
As I’ve previously mentioned (at the end of this post), I was within hitting distance during the physical confrontation between ardent royalties proponent Robert Rauschenberg and prescient collector Robert Scull—a famous altercation that occurred directly after a 1973 Sotheby Parke Bernet auction (which I attended as a cub reporter) that included Scull-owned works.
“I’ve been working my ass off just for you to make that profit,” Rauschenberg famously groused to Scull, shortly after a cordial encounter (below) with the taxi mogul’s wife, Ethel (at right, with her hand on the artist’s shoulder):
Screenshot from The Price of Everything documentary
Pogrebin provided scant evidence in her article of Fairchain’s supposed “traction with artists and gallerists.” She does name five supportive artists—Hank Willis Thomas (who, as an adviser to the company, “holds some form of equity or stock options in the platform,” as indicated in her Times article); Alteronce Gumby (an investor in the company); Eric Fischl, Carroll Dunham and Ludovic Nkoth (who?). In a statement that Fairchain supplied to the Times, Frank Stella is quoted as asserting that “residual payments for visual artists are overdue.” But the artist’s opinion regarding the suitability of this startup venture as a platform for receiving and distributing residual payments is not discussed.
Better evidence of Fairchain’s future viability would have been a detailed list on the company’s website identifying distinguished officers, advisers and artists who have signed on. At this writing, such background is mostly missing.
Unless “residual payments” for artists are required by law (which, as I suggested above, seems unlikely to happen in the U.S.), I see little chance that artists would risk alienating buyers by burdening them with future financial obligations.
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