Artists say the symbolism behind the payment is worth more than the bank account boost

It might just be small change, but some visual artists now have the opportunity to cash in on the copyright value of their work when it’s being on-sold in line with New Zealand and international copyright law.

An auction house licensing scheme, set up by not-for-profit organisation Copyright Licensing NZ, enables artists to receive a fixed blanket fee when their work is reproduced for use in auction houses’ marketing material promoting the pieces for sale.

This includes images of the work in print and online catalogues, along with social media posts.

But artists and auction houses have to sign up with Copyright Licensing New Zealand and agree to a licensing agreement to be a part of the scheme. So far, about 200 artists are on board, but the only auction house to sign up to the scheme is Auckland’s Art+Object. The money is collected by Copyright Licensing NZ and then passed on to artists, with the first round of payments due to be dished out.

The establishment of the scheme comes ahead of one of New Zealand’s most significant art auctions in living memory: Webb’s is to auction off the entire BNZ corporate art collection to raise money for charity, after first touring the exhibits around the country. Established in 1982, the collection contains works by many of the nation’s most revered artists including Colin McCahon, Rita Angus, and Gordon Walters. 

Webb’s director of art Charles Ninow says the auction catalogue is yet to be confirmed, but the auction house will “seek the appropriate approvals and pay the appropriate fees”.

He says the Copyright Licensing NZ scheme is one of a number of options that are being looked into.

Artists have long resented auction houses reselling their works, at ever-increasing values, without giving them any royalties. And even now, creatives won’t be raking in the big bucks. The fees, which were set by Copyright Licensing NZ, are relative to the sale price. 

Artists will be paid $15 for works sold between $151 and $2000. This is bumped up to $100 for works between $2001 and $10,000 and periodically increases to $400 for works worth more than $100,000.

“For an artist to get $100 is actually quite good. It may not seem like much, but if you’re working three part-time jobs, any money is good money,” 
– Visual artist Judith Darragh

It’s not a huge amount of money, renowned visual artist Judith Darragh admits.

“But it’s not about that. It’s about being valued, and it’s the right of owning intellectual property,” she says. “Just seeing artists being handed money is quite extraordinary.”

Darragh, who was appointed an Officer of the New Zealand Order of Merit for her services to the arts in 2020, has been advocating for artist copyright and resale royalties for years. 

The Covid-19 pandemic has hit artists hard, and now there’s much talk of how one can make a sustainable living off their creative works, she says.

“For an artist to get $100 is actually quite good. It may not seem like much, but if you’re working three part-time jobs, any money is good money.”

Visual artists are behind the game on copyright compared to writers, filmmakers, and musicians in this country, she says, while New Zealand generally lags behind other countries on artist copyright obligations.

This licensing scheme is getting the ball rolling on changes to help creatives carve out more solid financial foundations.

“First thing is you get copyright, that’s the bottom rung. The second rung is resale royalties, third rung is artist wages.”

Payment more a ‘gesture’

Art+Object director Leigh Melville says the artwork that comes in the front door can range in value from $100 to $1.5 million, but the majority of the fees paid out have been on the bottom end of the scale at $15.

She says the scheme signals a big shift in mindset, where fees traditionally have not been paid, but she thinks it’s the right thing to do.

The auction house also sought legal advice on the matter, which found a copyright fee was the right thing to implement.

But again, she says the amount artists will pocket isn’t anything to write home about.

“No one is going to retire on these fees, it’s a gesture on our part.”

At the same time, she doesn’t think the fees should be hiked up, either.

“Once you start adding on extra layers of fees, it starts to diminish people’s interest. And it also starts being a little bit invasive,” she says.

Art+Object director Leigh Melville says the auction house sought legal advice on the matter. Photo: Supplied

“Buying and selling art is meant to be fun … once you start to put obstacles in the way of that it discourages people.”

Bell Gully senior associate and intellectual property lawyer Sebastien Aymeric says artists should be compensated for the reproduction of their work, as property rights under the Copyright Act exist automatically upon the creation of any works.

“Anyone who takes up a paintbrush and makes a painting will be protected by copyright,” he says.

While a physical painting might be sold at auction, the artist will retain copyright of the image. This means they have the exclusive right to reproduce that work and others need to acquire this to do the same.

“The artist would have retained the copyright in the painting, so to copy that work in a catalogue, whether that’s in print or online, you would need the permission of the artist as the copyright owner to copy that work,” he says.

“It’s acknowledging that the artist retains copyright in the work and that to make a copy for promotional purposes, the auction house needs the consent of the artist.”

From a legal perspective, he says there’s no obligation for artists to sign up to the licensing scheme or for the fees to be a certain amount.

Artists beguiled by copyright law

Copyright Licensing NZ chief executive Paula Browning says it’s impossible to put a dollar value on the amount artists might have missed out on by not collecting copyright fees, according to Browning.

While the fees aren’t massive, she says the intent was to take a reasonable approach and reference how similar schemes work in the UK and Australia.

The world of licensing and copyright can be unknown territory for many artists, she says.

“They know about creating their work and they might be working with a gallery, or they’ve got avenues for selling the original work, but actually licensing their work in all sorts of different ways isn’t something that they necessarily understand or have been taught.”

She thinks there’s no reason that other auction houses shouldn’t sign up.

“Auction houses wouldn’t have a business without art and artists, and it’s time that they acknowledged that by rewarding the artist whose work they are using in their business.”

Next on Copyright Licensing NZ’s agenda, she says, is developing an online tool for artists to facilitate their own licensing deals, without needing legal knowledge or the assistance of a lawyer, for small agreements and contracts that can provide a secondary revenue stream for them.

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