Saturday, January 19, 2008

Banksy, e-bay auctions and DACS

"BANKSY - ORIGINAL on Portobello Road, London"
A screen shot of the 'larger image' of the subject of an e-bay auction on 14th January 2008
posted by mobolajimedia

Here's one for anybody who has ever had problems with buyers while selling their art on e-bay - or for anybody who has ever sold somebody else's artwork and needs to think about the resale right.

On Monday this week a Banksy 'original' on a wall was sold on on e-bay - after a few mistakes while bidding and 69 bids - for £208,100. Banksy is (according to his wikipedia entry) a "well-known pseudo-anonymous[1] English graffiti artist". The art in question is of an 'artist painting' the word Banksy onto the wall - which I guess means if it's genuine then it should be categorised as a self-portrait.

The seller identified himself as being the landlord of a building on which the graffiti was painted. At some point during the process, the seller amended the e-bay auction to indicate that
The following statement: "Sotheby's have confirmed there is no doubt that this is an original Banksy" is inaccurate, Sotheby's have not authorized this for public disclosure. Sotheby's does not authenticate works by Banksy as only Banksy and his dealer/manager has the right to authententicate his artwork.
Sotheby's? How come they're involved???

Which then made me wonder who was watching the auction and who exactly was involved in the bidding. In fact, I then started to wonder whether the e-bay auction itself was an art event rather than a real auction! Read on for why that thought occurred.

The sale price initially looks like good news. Doubtless Bonhams, or whoever is appointed, will be making a note of it in relation to any future auctions of work by Banksy that they handle.

And then I looked to see who had bought it - and found that the landlord appears to have sold the wall to somebody who doesn't have much of a track record on e-bay and is labelled by other e-bay sellers as a 100% timewaster.

So then I googled Kimberly Hitchens - who was identified by the seller as the person that potential buyers should deal with - and, maybe unsurprisingly, found that it's also the name of somebody who is an artist.

So was this a real auction or was it a hoax or was it an 'art event'? Could it even be that somebody was testing the waters?

Then I had a thought which came out of the left field. Supposing the auction and sale were genuine. If, that's the case how are e-bay and the landlord had going to handle the DACS angle with an auction like this?

According to the Design and Artists Copyright Society database Banksy is registered which means he that if it were a resale then Banksy would qualify to receive a royalty payment. A quick calculation using the DACs website's very nifty calculator, revealed this payment would need to be £5,447.50. That is, of course, if both the auction and the buyer turn out to be genuine and it was a resale.

However, the Artists and Visual Creators' FAWs document (which can be downloaded as a pdf document from DACS) makes it clear that not all sales are covered by the Resale Right.

Firstly, it's exempt if it's a first sale.

Secondly it looks like it might still be exempt because of the following
sales which occur between private individuals, or between a private individual and a museum, will not qualify. The law is designed to cover only those art works which are sold in the secondary market by art market professionals.
Artists and Visual creators FAQs (Q2)
Now I don't know how much art gets sold on e-bay - but it does make me wonder, during these 'credit crunch' times, whether some sellers might in future aim to avoid the resale right payment (which is on a sliding percentage scale of the sale price) by putting artists' work for sale on e-bay rather than in one of the auction houses - like Bonhams or Sotheby's so that it qualifies as a sale between private individuals. Although maybe some might argue that the quantity of art being sold by e-bay actually means that it really ought to be designated as being part of the secondary art market - and consequently all resales of artworks should qualify.

So I asked the question - and this is the response you get when putting the search term 'DACS resale right' into the e-bay help/search box. Which I think means e-bay doesn't recognise DACS!

So what was this all about?

Well if nothing else, it all makes for an interesting flight of fancy, a surf across various interesting websites and a bit of education on a Saturday morning!

However, I'm almost tempted to go and see if that wall is still there in the same state in six months time!



Tina Mammoser said...

Very interesting! DACS is a great organisation. My original thought half way through was 'but this is a private sale' so no resale right.

I think the main thing is that if a gallery owner or other arts professional who purchased the work in that role tried to resell it as an individual they could be taken to task. The original sale would have been a business transaction - the first step in the piece being acquired by an arts professional - so unless the artwork were then 'gifted' to the business owner himself (a questionable enough act to start with to the Inland Revenue no doubt) and even then, I'm sure the trail could be followed.

Perhaps not easily, but the chain of acquisition would be there somewhere. And with a high-profile artist such as Banksy any buyer would (or should!) want documentation of provenance.

More worrying, in the experience of a friend of mine, is the case where a gallery or agent buys work outright and then the artist has no record of where it might go next - reselling abroad, resale through auction, etc. Artists themselves need to try and have contracts, including outright sales, that provide them with information on future resale. Or at least attempt to. (I realise these things are more difficult in practice than in writing.)

Making A Mark said...

Thanks for the contribution Tina - as always you've moved the analysis on further!

What the Artist FAQs says - and this is why I questioned what e-bay's role was - is as follows

"The law says that the art market professional and the seller of the art work are “jointly and severally liable” for the payment of the resale royalty. In practice, we expect that the art market professionals will pay the royalty."

I then read on a bit further and it says

"Where the seller of the art work is acting as an art market professional and using websites such as eBay, a resale royalty will be payable to the artist. Art market professionals are required to supply information about these sales in order for royalties to be collected."

So that raises the question of whether e-bay is obliged to release data about the seller's and buyer's identities in order that such information - and the resale right payable - can be collected by the relevant DACS agency - the only legal entity which can collect the royalty payable.

My reading of this is that e-bay is obliged to furnish the information if it is required for legal purposes.

Interesting though isn't it? Banksy would get to stay anonymous but the anonymity of the buyer and seller on e-bay could not be maintained.

shea holliman said...

Very interesting post,
I wonder like you, if it was an art event? If it was, it was genius.

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