Saturday, April 14, 2012

Artists group fighting for re-sale rights

Toronto painter Charles Pachter's 1981 painting

Toronto painter Charles Pachter's 1981 painting "Red Barn Reflected, which was one of the marquee offerings at Waddington's Concrete Contemporary Auction...

The Painted Flag, the iconic 1981 acrylic on canvas by Toronto artist Charles Pachter.


The Painted Flag, the iconic 1981 acrylic on canvas by Toronto artist Charles Pachter.

Toronto artist Joanne Tod's 1990 painting

Toronto artist Joanne Tod's 1990 painting "Flange," which sold for at $4320 (including premium) at Joyner/Waddington's Concrete Contemporary Auction Thursday...

Toronto artist Kelly Mark's

Toronto artist Kelly Mark's "Not Fragile," which sold for $2880 (including premium) at Joyner/Waddington's Concrete Contemporary Auction Thursday night in...

An image from Toronto artist Edward Burtynsky's

An image from Toronto artist Edward Burtynsky's "Rock of Ages" series of photographs on quarries, which sold for $10800 (including buyer's premium) at Joyner...

An untitled still life painting by Toronto artist Jay Isaac, which sold for $3120 (including buyer's premium) at Joyner/Waddington's Concrete Contemporary Auction Thursday night in Toronto.

An untitled still life painting by Toronto artist Jay Isaac, which sold for $3120 (including buyer's premium) at Joyner/Waddington's Concrete Contemporary...

In 2003, Charles Pachter painted a vibrant, poppy-red double image of a barn, as seen after the springtime thaw had turned the fields near his rural studio into sodden slicks of melted snow. It was called “Red Barn Reflected,” a playful nod both to geometric abstraction and the weighty heritage of Canadian landscape painting that many artists of his generation labour beneath (“I called it my Lawren Harris barn,” chuckles Pachter, 69, citing the Group of Seven giant).

He sold it for $7,500 that year, he remembers, to a couple in Caledon whose names he can’t recall. On Thursday night, it went up for auction with a presale estimate between $25,000 to $30,000.

It didn’t sell, but Pachter’s wound is only to his pride, not his wallet. Had it sold, he wouldn’t have seen a cent of it: resale rights for artists’ works sold in Canada are a non-existent sore point on the to-do list of CARFAC, which lobbies for artists’ rights here, and they’ve started to gain traction.

This month, a joint parliamentary committee of Heritage and Industry ministry staff are reviewing a CARFAC-proposed amendment to the Canadian Copyright Act that would give living artists a five per cent royalty on all sales of their work after its original sale. Had the royalty been in place last November, CARFAC notes, 35 living artists would have been paid more than $98,000 in royalties from three auctions that month.

The royalty would apply to the “secondary market,” and with few exceptions, it would apply to almost all sales at auction on the country. The proposal also calls for the five per cent royalty to be paid to artists’ estates if they died within 50 years of the sale. The biggest beneficiary last fall would have been the estate of Quebec painter Jean Paul Lemieux, whose painting 1910 Remembered sold for a record $2.34 million. It would have netted a $117,000 royalty.

In Pachter’s case, the payout Thursday would have been around $1,250. Not life-changing, perhaps, but worth its weight in respect.

“Certainly, part of the royalty payment is the principal of it,” says April Britski, CARFAC’s executive director. The committee is expected to report its recommendations for the amendment by the end of the month; Britski is hopeful that the CARFAC proposal will be enshrined in law by the end of the year.

It’s not always just principle, though, even for living Canada artists. In November 2010, Alex Colville, now in his 90s, saw his 1953 painting “Man on Verandah” sell for $1.287 million. The royalty, had it been in effect, would have netted Colville around $64,000 — likely far more than he received in the original sale in the first place.

This is, of course, an extreme example in a post-war and contemporary art market that’s only recently begun to find its feet. This week’s auction was a case in point. It was the first of its kind: A bonafide contemporary auction exclusively of Canadian art almost all by living artists. By any standard, it was a modest affair. Some pieces sold for less than $1,000, and topped out, after a brief, spirited bidding war, with the $19,200 (including 20 per cent buyer’s premium) sale of a Standing Nude by Kitchener painter Jeremy Smith.

“We see this as very much a nascent market,” says Stephen Ranger, the vice president of new business development for Joyner/Waddington’s, which hosted the auction. Ranger dubbed the affair “Concrete Contemporary,” meaning to lend a with-it sheen to the traditional stodginess of the Canadian auction circuit. It brings both the CARFAC mission, and the struggles of the Canadian contemporary scene to develop a commercial base, into simultaneous sharp focus: Of the 69 works offered, all but three were by living artists; some started as low as $600.

Ranger wants the auction, now and in future, to act as a bridge between contemporary Canadian artists and potential buyers they might never otherwise see. “We’re tapping into what I think is an underserved area of the art market in Canada,” he says. “We have such a great, vibrant gallery scene, but that hasn’t necessarily translated into sales. What we’re hoping is that people who don’t necessarily go to some of these galleries might be within the reach of Waddington’s, and be interested in what we’re doing.”

On those terms, Concrete Contemporary was a modest affair that could be cautiously termed a mild success. Even though less than half the works sold, the room was full, and the bidding was brisk and lively. Smith almost doubled his low estimate of $10,000, Ottawa painter painter Carol Waino’s Structures of Memory nearly tripled hers, selling for $16,800 (including premium) and Toronto painter Kim Dorland’s Northern Light, Saskatchewan, which topped the high end of its estimate by $600, going for $15,600 (including premium).

But there were some notable disappointments, too, serving as a nagging reminder of a market still struggling to establish itself. The high end suffered: Along with Pachter, a large scale work by Vancouver photo-conceptualist Ian Wallace, made for the Power Plant, didn’t sell when bidding stalled at $50,000, short of its reserve price. Bids on a small drawing by the late Betty Goodwin topped out at $22,000, short of its $24,000 low estimate.

Still, it’s a modest first step towards a larger goal. “Part of what we’re trying to do is make sure there is a secondary market for Canadian contemporary art, period, and that it does appreciate,” Ranger says.

If the royalty is implemented, Rangers says abruptly, “we’ll comply.” To this point, he says, the auction houses have not been consulted, by CARFAC or the committee, Ranger says. “There’s a misconception, I think, that auction houses make significant money on the backs of artists, and that’s not the case. In many cases, auction houses have made artists’ careers, and that’s what we’re trying to do here,” he says.

“In this arena, a royalty payment is little more than the pure principle Britski mentions (Smith would have been the kingpin of the evening, taking home a little less than $1000), and some artists aren’t sure if it might cause more harm than good.

“Maybe this is the kind of conversation we might want to have after the 10th, or 15th of these,” says Jay Isaac, a Toronto painter whose work was bid up to $2,600 Thursday night, short of its low estimate of $4,500. “I’d love to get a few hundred bucks — I wouldn’t say no,” he says. “But I’m 100 per cent in support of this auction, just as it is, because I think it’s something that can help build a whole new market for contemporary art in Canada.”

Royalty payments along the lines of what CARFAC is proposing are legislated throughout the European Union and in California, though a parallel U.S. federal effort is also underway. Why Canada has been slow to adopt the same measures seem vague to CARFAC’s Britski. “Dealers and auction houses are concerned that the market is too fragile to support it,” she says, while pointing out that over the past several years, auctions of traditional Canadian art have set new sales records virtually every year.

This is mostly due to unquashable interest in Canadian historical works, particularly by iconic Canadian painters like Tom Thomson, Harris and Emily Carr.

But in this realm, appreciation in value is far from a sure thing. Pachter wonders at the potential predicament: “What happens if the price goes down — would I have to give the collector a rebate?” he laughs.

When asked about the modest royalty payout for “Red Barn Reflected,” Pachter sighs. “Well, it would be better than nothing,” he says. He learned long ago to let go.

In 1981, he opened The Flag Show in Toronto. It was what it sounds like: The Canadian flag, painted in various stages of unfurling against a bright blue sky.

He sold one of them, “The Painted Flag,” to Neil Vosburgh for $3,500, who then owned the Duncan Street Grill in Toronto, where it hung for years. Vosburgh sold it years later to a mining magnate in the Yukon, after which Pachter promptly lost track of it, until it turned up at a Joyner’s auction in 2009.

It sold for just under $38,000 — more than triple its low estimate of $12,000 — to the McMichael Canadian Art Collection, where it now hangs with pride of place. “I didn’t get a thing for it,” he laughs. “But was I proud? You bet I was.”

History of The Painted Flag

1981: Sold by artist Charles Pachter to Neil Vosburgh for $3,500

Sold a few years later by Vosburgh to an unnamed mining magnate in the Yukon.

2009: Sold at auction for $37,760.

Commission Pachter would have received from the sales if five per cent resale rights were in effect: $1,888.45


  1. This sounds like a version of copyright law that sees an authro rewarded some paltry sum each time a book is reprinted. At least the author gets something, and I really hope that this movement gains traction for artists.

    1. Its fine,but lot of things are available in the world.I definitely agree.The paint is applied on dry watercolor paper, rather heavily, and then a second brush, containing only clear water, in my other hand immediately touches one of the edges, and pulls the paint away, creating a gradient of color.
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