Auctioning African American Art in 2018 and Beyond
By Shantay Robinson
The whole year of 2018 was a watershed moment for black visual artists. To start off the year the right way, in February, Kehinde Wiley and Amy Sherald unveiled the portraits of the first African American President, Barack Obama, and First Lady Michelle Obama. In March, the Broad purchased Mark Bradford’s Helter Skelter for $12 million making his work the most expensive of a living black artist. But coming up in May 2018, was the unexpected sale of Kerry James Marshall’s Past Times that broke Bradford’s record as the most expensive sale at auction for a living black artist when it was sold for $21.1 million to Sean “P. Diddy” Combs.
While larger auction houses were responsible for the record-breaking sales, smaller less expensive auction houses, for years, have been responsible for the sale of many African American artworks. For eight years, Hearne Southern Auction House, a black-owned business, has been operating throughout the year by holding auctions online. While other auction houses hold auctions of African American art once or twice a year, Hearne is constantly holding auctions with staggering start and end dates through its website. Everything auctioned on the website is 10 years or older, so the offerings are from established artists with the goal of instituting auction records for artists. Hearne Southern Auction House prides itself on social responsibility and donates a portion of its proceeds to a nonprofit educational institution. The current auction catalogue includes works by John Biggers, Romare Howard Bearden, Benny Andrews, Phoebe Beasley, Aaron Douglas, Elizabeth Catlett, and Beauford Delaney.
This year was very profitable for African American artists and collectors. Swann Auction Galleries, which has a dedicated division for African American artworks, reported their highest grossing auction of African American art to date on April 5, 2018 with a total of $4.5 million — $1 million over the estimate. Nine artworks exceeded the $100,000 mark. Some of the artworks auctioned this year made their auction debut, including William H. Johnson’s Jitterbugs prints which are also held by the Smithsonian. For the October 4, 2018 auction, selections from the Dr. Robert H. Dearden Collection were made available, with nearly half of the artists women. The Dearden collection includes works by Howardena Pindell, Alison Saar, Kara Walker, Lorna Simpson, and Carrie Mae Weems.
The Swann auctions also reported, Norman Lewis, who was a prominent visual artist in Harlem, garnered the highest price during the April auction for a painting, Untitled. Lewis was a member of the infamous Spiral Group along with Romare Bearden and Hale Woodruff. In addition to being an Abstract Expressionist painter, Lewis was a scholar and teacher at the Arts Student League. In the April Swann auction, a Lewis painting went for almost three times as much as it was estimated to sell for, garnering $725,000 with a $150,000 -$250,000 estimate. In the April sale, Lewis also exceeded expectations with another Untitled estimated at $12,000 – $18,000 and realizing a price of $37,500. Lewis’ Untitled (Sketches to Charlie Parker’s Music) also exceeded the estimate in the October sale with an estimate of $7,000 – $10,000 and realized a price of $30,000
Charles White, whose retrospective is currently at the Museum of Modern Art (MoMA) in New York City, also exceeded expectations with a sale of $509,000 for his painting O Freedom at the Swann Auction. The retrospective was at the Art Institute of Chicago earlier this year, and it will travel to the Los Angeles County Museum of Art (LACMA) in Spring 2019. While African American artists and art lovers like Kerry James Marshall have expressed long-time admiration for White, with the retrospective, White’s work is being rediscovered and granted the respect it deserves. Long-time notables like Jacob Lawrence, Elizabeth Catlett, and Hale Woodruff also saw significant returns on their work in this year’s Swann auctions. These artists are well-known, but at auction, their reputations exceeded the estimations of their work. Younger artists like Rashid Johnson, Alison Saar, and Kerry James Marshall also exceeded expectations by large margins. Because African American artists are in high demand right now, the fight for these heralded artists’ works must have been fierce. It will be interesting to see whether demand stays or dwindles in the new year.
In regard to African American artists and the resale market, a conversation with Chicago collector Patric McCoy raises an issue about charity auctions. He informed me that while organizations raise money through charity auctions of artworks, they could go about it in a more just way for everyone’s sake. He describes a win-win-win situation. As it stands, he says, the artists aren’t benefiting monetarily from the sale of the work, the collectors aren’t getting the tax-write-off they should, and the charities aren’t gaining the most charitable donations they could. Instead of asking the artists to donate the work, he suggests that a collector who needs a tax-write-off buy the work for prices the artists set, the collector then assigns value to the work, which he can then report to the IRS, and the charity can start the bidding at a higher price point, benefitting all involved.
While African American auction prices are at their peak, there is still some controversy around auctions themselves. According to the 1977 California Resale Royalty Act, the state allowed artists in California royalties of 5% on any art of their making resold for more than $1,000. But in July of this year, after a seven-year dispute, a federal appeals court in San Francisco ruled that artists in California will no longer get a cut of secondary sales. In the article, “California Tried to Give Artists a Cut. But the Judges Said No,” The New York Times reports, this type of legislation has been introduced in several states including, Connecticut, Florida, Illinois, Iowa, Maine, Michigan, Nebraska, New York, Ohio, Rhode Island and Texas, but California was the only state to create a law allowing artists to receive royalties. The New York Times also reported that up until 2012, when litigation started, a spokeswoman from the California Council of Art distributed $256,144 to 555 artists. According to an artnet News article, “Ending a Seven-Year Dispute, a US Court Rules That Artists Aren’t Entitled to Royalties for Artworks Resold at Auction,” only artworks sold in California between January 1, 1977 and January 1, 1978 will continue to receive royalties.
Other countries like France, Australia, most of the countries in the European Union, and 47 other countries allow artists compensation from the future sales of their work. But the French concept droit de suite meaning “right to follow” has yet to work in the United States. Droit De Suite: The Artist’s Resale Royalty (1992) is a 760-page document detailing the parameters of royalties to visual artists by Ralph Oman Register of Copyrights of the United States. The recommendation in opposition to Droit de Suite is as follows:
Based on our examination of the written comments and the hearing record, and our independent research, the Copyright Office is not persuaded that there are legitimate economic interests of visual artists that would be helped by a resale royalty. Although authors who do not create unique works can produce numerous copies or license numerous performances and reap the benefits of continued royalties, the value of works of fine art is determined by scarcity. Visual art works do not require the same level of demand as printed works, for example, to secure a living for the artist. Indeed, in this respect, even though fine artists cannot avail themselves optimally of reproduction rights, it may be argued nevertheless that the copyright scheme favors such artists who have fewer works to market. (p.143)
Some artists have been known to include stipulations about the resale of the art into their contracts, but there are no set rules for the resale of artists’ works. You can imagine that assigning royalties would be a complicated endeavor, but the countries employing it prove it can be done. Musicians, writers, and filmmakers all receive compensation for future uses of their work within a certain number of parameters. Why shouldn’t visual artists?
As African American artists are seeing a rise in the prices of their artwork as they go to auction, their artworks increase in value, but is this all they can rely on? The study for Past Times, which had been in the private collection of Joel Straus, sold for $1.5 million in September. According to Crain’s Chicago Business article, “Art world rarity: An artist profits from the resale of painting,” Straus had at the same time purchased the fully realized painting of Past Times for the Metropolitan Pier & Exposition Authority’s art collection for $25,000, which sold in 2018 for $21.1 million. There is no mention of whether Marshall received compensation from the astronomical sale price of his painting. But of the study’s sale, Straus will share some of the profit with Marshall. Straus states, “It seems like the ethical and right thing to do.”
In September 2018, Kasseem Dean aka Swizz Beatz spoke to a crowd of 800 ahead of Sotheby’s Contemporary Curated auction he organized. It is reported in an artnet News, article, “Swizz Beatz to the Art World: Pay Your Artists Royalties When Their Work is Resold,” that he stated, “Most of these artists did these works when they were young. When it appreciates, they should be involved in that.” His goal through the auction was not to sell art that night but to highlight the conversation that needs to happen for artists to be compensated justly for their work. Swizz Beatz encouraged Joel Straus, who was going to keep quiet, to speak up about sharing profits from the sale of the study with Marshall. Although the actual amount he paid for the artwork in 1997 and the percentage of the profits he plans to share with the artist aren’t being disclosed, it’s a great gesture. Swizz Beatz declares, “My approach is, ‘Let’s make it a lifestyle, to treat the artists right—especially the artists that are living.’”
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Shantay Robinson, BAIA resident scholar has participated in Burnaway’s Art Writers Mentorship Program, Duke University’s The New New South Editorial Fellowship, and CUE Art Foundation’s Art Critic Mentoring Program. She has written for Burnaway, ArtsATL, ARTS.BLACK, AFROPUNK, Number, Inc. and Washington City Paper. While receiving an MFA in Writing from Savannah College of Art and Design, she served as a docent at the High Museum of Art. She is currently working on a PhD in Writing and Rhetoric at George Mason University.
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