Exploring Artist’s Resale Right in Latin America’s Growing Art Market

Posted on: October 30, 2023 by

The recent report from DACS reveals that since 2006, almost £120 million in Artist’s Resale Right (ARR) royalties have been distributed to over 6,023 artists and heirs in the UK. ARR plays a significant role in the UK’s art ecosystem, contributing directly to artists’ practice and their legacies with minimal impact on art market participants. Furthermore, the report shows that although the introduction of a scheme of ARR is voluntary under the Berne Convention, over 90 countries have recognised this right in their national legislation. Notably, the International Confederation of Societies of Authors and Composers (CISAC) recognises “[t]his small and crucial royalty” as “the second biggest visual arts income source”.

However, a successful ARR requires not only an active secondary art market but also the implementation of an effective collecting scheme. Thus, while several countries have codified the right into their laws, many of them have not yet established a system for collecting and distributing the royalties. This lack of an active ARR market can be seen in various countries’ legislation – and also seems to be the rule in Latin America.

In recent years, the Latin American art market has experienced remarkable growth as it works to gain visibility in the global art market. It is important to note that the cultural landscape of Latin America cannot be homogenised due to the complex processes of integration and the rich tapestry of cultures. This region encompasses a vast range of artistic traditions and developments, featuring renowned artists like Frida Kahlo, Fernando Botero, Joaquín Torres García, León Ferrari, Carlos Cruz Diez, Lygia Clark and Wilfredo Lam.

Despite this cultural diversity, the global interest in the art of this region has grown significantly. For instance, Christie’s has attracted participation from buyers and sellers from six continents and over 40 different countries, while Phillips has received an enthusiastic response from collectors, setting important auction records for artists including Lygia Pape, Olga de Amaral, Jac Leirner, Roberto Obregón, Damián Ortega, Tania Bruguera, Tomás Saraceno and Nelson Leirner. Moreover, Sotheby’s has set new auction records for more than 20 significant modern and contemporary Latin American artists, showing the interest of 580 bidders from 51 countries and a relevant shifting demographic among collectors.

Frida Kahlo’s 1949 self-portrait, Diego y yo (Diego and I)

Additionally, the competitive pricing also presents important international opportunities for this region. While Rabbit, by Jeff Koons, was sold for a staggering $91.1 million, the world record for a Latin American artwork was set by Frida Kahlo’s painting Diego and I, which sold for $34.9 million at Sotheby’s in 2021. This surpassed the previous record held by Diego Rivera’s painting The Rivals, which was purchased for $9.8 million in 2018.

Anna Di Stasi, director of Latin American art at Sotheby’s in New York, concludes that the appetite for Latin American art is on the rise among European and American collectors. In Europe, for instance, the total bid amount at Phillips auctions between January 2018 and July 2023 was $50.5 million. But what about the ARR of those Latin American Artists? And what are the burdens faced by buyers, sellers and collectors of art in this region regarding ARR?

In Latin America, there is a visible collage of ARR configurations with a clear perspective in favour of the artists – in some countries more than others – following the civil law tradition. The duration of the right varies from 50 to 100 years. Across the region, the rate of the royalty ranges between 2 and 10%; Mexico has a sliding scale, similar to the EU and the UK, and some countries have established a rate of at least X%, opening the possibility of negotiating a higher percentage. No country has either a threshold value or a cap, as provided by the UK Regulations, thus promoting the protection of the artist but also ignoring the administrative costs of collection in low-value sales.

The basis of the right is primarily the resale price, and two countries in particular have established the profit over the increased value. The latter brings practical difficulties concerning access to previous sale prices, transaction tracking, inflation and currency devaluations. Specifically, in Brazil, it has been difficult to apply the right, as the increased value “in a country that has had 6 currency changes in the last 50 years is practically impossible, and galleries and resale houses take advantage of this difficulty to avoid paying what is due to artists”, says Fabiana Nascimento, Director of Visual Arts at Associação Brasileira dos Direitos de Autores Visuais (AUTVIS).

Despite many countries having collective societies for visual artists, it is not mandatory for the collection of the right, except in Venezuela. Now, in practice, it is shown that, unfortunately, only two countries have effectively implemented the right and are actually capable of collecting the royalty: Uruguay and, more recently, Mexico, which approved the Resale Right Tariffs in January of this year.

Joaquín Torres García’s 1943 drawing, América Invertida (Inverted America)

While the market and interest in Latin American artists grows globally, the collection of ARR has failed in most countries of this region, except for Uruguay, with no burden being placed on buyers, sellers or collectors. In the coming years, it would be interesting to examine how Mexico, the largest art market in the region, implements ARR, as well as other Latin American countries whose artists are selling abroad. In the meantime, the experiences of Uruguay and the UK, as illustrated in the DACS report, show there are ways to successfully implement the right for the benefit of these artists. Another source of income for creators who are, sadly, the weakest link in the chain.

Watch for further discussion of the global issues surrounding copyright and the moral rights of artists including ARR in the upcoming event by IAL, Art Law Unveiled: Navigating Modern and Contemporary Art Transactions, on 9 November.

Image Credits:

Image Frida Kahlo’s 1949 self-portrait, Diego y yo (Diego and I) © Sotheby’s. The image is used here under fair dealing for criticism, review and quotation (s. 30 CDPA). The source of the image is Sotheby’s and can be found here: https://www.sothebys.com/en/articles/frida-kahlos-final-bust-self-portrait-from-the-1940s. If you are a rightholder in this image, please contact us at info@nullial.uk.com and we will happily respect your wishes around image use.

Joaquín Torres García’s 1943 drawing, América Invertida (Inverted America), Museo Nacional de Artes Visuales, on loan at the Museo Municipal de Bellas Artes Juan Manuel Blanes since the mid-1970s, Montevideo, Uruguay, public domain via Wikimedia Commons – File:Joaquín Torres García – América Invertida.jpg – Wikimedia Commons