The two organisations, which both represent artists’ estates and are responsible for collecting Artist’s Resale Right royalties in the UK, are seeking unpaid resale royalties.
ACS and DACS are hoping this case will set a precedent for court action to address non-compliance with the Artist’s Resale Right Regulations and disclosure of sales information.
In a statement the two groups said that since 2006 they have “made repeated requests to art dealer Ivor Braka to report sales on which the royalty is due” and that Braka had “refused to respond in breach of his legal obligation to do so”.
However Ivor Braka spoke to ATG and said the action by DACS and ACS “sets out to damage my reputation and ‘make an example’ of me. They say that by failing to pay their levy on resale I am failing artists and being immoral. This is not the truth.”
He added: “I have always fundamentally disagreed with the introduction of the Artists’ Resale Right. It was a European law forced on us. I disagree with it because it favours artists with an active market and ignores those that are really in need.
“There are extraordinary artists that need support but don’t produce work that is acknowledged by the market. Why is there no discussion about this and why wasn’t this debated at the beginning?
“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 (‘art market professionals’), 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.”
Artist’s Resale Right gives creators of original works across their lifetime, and for 70 years after their death, the right to a payment when their work is resold on the secondary market with the involvement of an art market professional.
The rules, which came into force via an EU directive in 2006 and were updated in 2011 (see box, below), apply to works sold in the UK or another country in the European Economic Area (EEA) by an artist in the region.
The amount due is calculated on a sliding scale according to the resale price of the artwork and is capped at €12,500.
Harriet Bridgeman, ACS’s managing director, said: “The 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.”
Gilane Tawadros, chief executive, DACS said: “While the majority of the art market complies with the Artist’s Resale Right Regulations, a few do not, and in doing so gain an unfair advantage against their fellow art dealers and deny artists and creatives income that is desperately needed, especially after the Covid-19 pandemic. 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.”
Tim Maxwell, Charles Russell Speechlys’ partner who is advising DACS and ACS, said: “ACS and DACS role as the licensed collection agents for Artist’s Resale Rights is incredibly important as they ensure the fair distribution of royalties generated through secondary market sales to artists and artists’ estates.”
Braka also added that he believes ARR is a “deeply flawed levy in that it raises money almost exclusively for very wealthy artists or estates and that it “fails to recognise that when you buy for £5000 and sell for £3000, you are still liable to pay the levy. This makes no sense at all.”
He said he is a donor to a number of arts institutions in the US and UK including in The Yale Center for British Art, The Whitworth University of Manchester, The Serpentine Gallery, The Tate and The National Gallery in London.
Read ATG’s guide to Artist’s Resale Right.