Lawsuits by artists against dealers are as rare as hens’ teeth, chiefly because most solo artists have few if any resources to challenge wrongdoings by dealers invariably better-resourced in the art ecosystem. Which is why artists have pooled their resources to form collective entities to pursue their joint concerns.
In March 2022 at London’s High Court, the Design and Artists Copyright Society (DACS) and the Artists Collecting Society (ACS) jointly pursued a lawsuit on behalf of their beneficiaries, against London-based modern and contemporary art dealer Ivor Braka and his limited liability company. Braka’s dealership has successfully operated since 1984, invariably reporting millions of pounds in annual sales (£7.1 million in 2020). These numbers are significant: DACS/ACS claim that Braka has repeatedly failed to provide them with information on sales of artists’ works on which resale royalties are payable, despite their requests to do so since 2006.
In 1984 UK artists formed DACS as a not-for-profit-share rights management organisation. Since formation DACS has collected and distributed copyright and resale right royalties to visual artists and their estates totaling over £100 million (£15.2 million in 2020). DACS now represents 180,000 visual artists and artists’ estates worldwide through its membership of CISAC, an international network of collecting societies formed in 1926 (Confédération Internationale des Sociétés d´Auteurs et Compositeurs).
In 2006, following enactment into UK law of the Artist’s Resale Right (ARR) Regulations, ACS was formed at the behest of the Society of London Art Dealers (SLAD) and the British Art Market Federation. ACS is a second not-for-profit-share organisation in the UK that collects and distributes resale right royalties to its 1,000 member artists and their estates (£1.2 million in 2019/20). ACS now also offers a copyright management service, and it, too, is a member of CISAC.
The UK’s ARR Regulations give artists (or their collecting society) the legal right to ask an art market professional seller or buyer (or their respective agents) – within three years of the relevant sale – for any information necessary to ensure payment of the resale royalty, such as the amount of royalty due or the name and address of the person responsible for making the resale royalty payment. ARR requests require the art market professional to ‘do everything within his power to supply the information requested within 90 days of the receipt of the request’. Failure to supply such information entitles the artist (or their collecting society) to ask a court to order the defaulter to do so – with a penalty for contempt of a court’s order being the final sanction. Any such information supplied about the resale must be treated as confidential by artists and their collecting society.
Hence the current lawsuit. DACS explains: ‘We hope that the proceedings will encourage compliance with the regulations, supporting artists and helping to balance the inequality of wealth in the art market.’ ACS adds: ‘Artist’s Resale Right, now more than ever, provides invaluable financial support to artists and their estates, so it is imperative that we shine a light on those who are cutting off this essential source of income.’ Braka and his company currently contest the lawsuit, essentially disputing whether ‘all of the claimants’ requests for information were sent and validly made under [the ARR] Regulations’.
This is the first time a lawsuit has been launched in the UK against any art market professional for failure to comply with the ARR Regulations, which give artists an automatic legal right for life (plus 70 years for their estates) to receive a small percentage of the purchase price each time one of their works is resold (for €1,000 or more) via art market professionals, who are required to comply by paying such royalties to artist collecting societies. During ARR’s first eight years’ of operating, SLAD conducted ARR training for its members and encouraged their compliance, which appeared to be working well.
In 2014, however, two leading DACS and ACS beneficiaries, Henry Moore’s daughter Mary Moore and Maggi Hambling, publicly voiced concerns at that time about some art market professionals not complying with ARR Regulations, and warned of legal action being taken against them. Hambling said ‘The honeymoon period is now over. The law changed in 2006 and there are people who are still trying to get away without paying … It’s going on all the time … I’m not saying all dealers are crooks. But it’s high time that everyone was doing the right thing.’ And Moore added: ‘The royalties are modest compared with the resale prices of the works, but artists are nevertheless being deprived of valuable income.’ Doubtless related to such significant voicings that year, SLAD signed a unique agreement committing to improving and harmonizing the administration of ARR within the EU, and to proactively cooperating with other signatories including DACS, ACS, Sotheby’s, Christie’s, the Association of Art and Antique Dealers, the European Federation of Auctioneers, and the Federation of European Art Galleries Association.
Furthermore, by 2014 ARR’s worldwide glass was half-full: only 81 countries had enacted ARR legislation, a number that motivated an international network of artists rights collecting societies to launch a global campaign to make ARR mandatory via a proposed new worldwide treaty. The campaign asserted that ARR ‘is absolutely vital for visual artists … and offsets the fact that works of visual art generate less revenue from reproduction and communication rights than other creative works. Today, the art market is global and the author’s resale right needs to be too.’
Braka recently told the UK’s Antiques Trade Gazette: ‘I have always fundamentally disagreed with the introduction of the Artists’ Resale Right … I may stand alone, but I have always been very vocal about my objections to the Artists’ Resale levy. It applies just to those in the art business … and yet many so-called collectors these days are the biggest traders. It is often compared to copyright law in the music world, but it is not the same. Although I believe the artist should hold copyright over the use of mechanical reproductions of their work, the work itself becomes the property of someone else once it is sold. ARR goes counter to the spirit of English property law. My lawyers would be unhappy for me saying this with a case pending but I felt it essential for my reputation to be open about my position.’
Braka’s open comments perhaps signal that his alleged non-compliance with ARR Regulations is more rooted in his abiding opposition to the principle and enactment of ARR than in the legal validity of ARR information requests. If not settled beforehand, a court trial is likely to occur later in 2022.
© Henry Lydiate 2022
HL’s Note February 2023: The Artists’ Collecting Society (ACS), the Design and Artists Copyright Society (DACS) and Ivor Braka Limited jointly announced that “they have reached a settlement following a legal dispute over compliance with the UK Artist’s Resale Right legislation. ACS, DACS and Ivor Braka Limited look forward to working together to provide artists with the royalties to which they are entitled”. Details of the settlement are private and confidential to the parties.