What a cheese sandwich and a truck can show us about the rights of artists

In May this year a painting of a black truck by Canadian artist Maud Lewis sold at auction for CAD$350,000 (AUD$388,600). Incredibly the Demas’s acquired the painting more than five decades ago in exchange for a cheese sandwich from a man who had purchased the painting from Lewis out of sympathy.

Maud Lewis spent most of her adult life painting out of a tiny one-room house on a dirt road in Nova Scotia, Canada. Lewis was poor and painted with a mixture of donated exterior and interior paints on old beaverboard, a type of drywall used in buildings. Without any formal training and suffering from arthritis and various defects from birth, she would paint bright and cheerful landscapes depicting her hometown and sell them for a few dollars. In 1965 she was the focus of a documentary and, with her newly found celebrity, she was commissioned by tourists and locals to paint flowers, cats and wildlife for which she charged about $5 a piece. Lewis died in 1970 leaving behind her husband who passed away in 1979, and a daughter was who adopted by another family.

Since then Lewis’ paintings have gone on to fetch tens of thousands of dollars. After their extraordinary windfall, Irene Demas remarked, “it’s just too bad [Lewis] didn’t live long enough to really reap the benefits of her art”.¹ The remarkable prices that Lewis’ paintings have sold for, especially since the release of a biopic featuring Sally Hawkins and Ethan Hawke in 2017, beg the question – how do artists fully profit from their art, especially if it only becomes valuable late in or after their lifetime?

In Australia, the answer lies in the Resale Royalty Right for Visual Artists Act 2009 (Act).² Under the Act, artists are entitled to a 5% royalty of commercial sales of their artworks. To be eligible under the scheme the artwork has to be re-sold on a commercial basis for $1,000 (or foreign currency equivalent) or more. The artwork must be an original work of “visual art”, which includes carvings, fine art jewellery, photographs and even digital and multimedia artworks. The scheme does not extend to private sales between individuals, and a re-sale does not include the first sale of the artwork.

Sellers and art market professionals are required under the Act to send information about all re-sales of artworks over $1,000 to the statutory collecting agency, Copyright Agency Limited (CAL). CAL then determines eligibility, collects the royalty and pays it onto the artist (less an administrative fee). If the artist has passed away, the royalty is paid onto their beneficiary. The entitlement is not dependent on copyright – in other words, even if copyright in the artwork is no longer held by their artist or their beneficiary, they are still entitled to the re-sale royalty. The Act also simplifies the process of proving authorship, as presence of the artist’s signature or mark on the artwork is prima facie evidence that the person is the artist for the purposes of the Act. The entitlement lasts until the end of 70 years after the end of the calendar year in which the artist passed away.

According to CAL’s most recent reports since the introduction of the Act in June 2010 more than $11 million has been generated in royalties for over 2,300 artists. Most royalties are for somewhere between $50 and $500, with many artists receiving more than one royalty payment.³

Only Australian citizens, persons who normally reside in Australia, and nationals of reciprocating countries are eligible to receive re-sale royalties. This requirement extends to the artist’s beneficiaries. Reciprocating countries include the United Kingdom, France and Germany. Over 70 countries have implemented some form of re-sale royalty law but, notably, the United States has no such scheme.

Given that Lewis’ paintings never sold for more than $10 during her lifetime, the sentiment of Irene Damas’ comment was rather apt. Had Lewis and her beneficiaries been citizens or residents of Australia, and had Black Truck been auctioned in Australia or a reciprocating country, Lewis’ beneficiaries would have been entitled to a royalty amounting to tens of thousands of dollars.

Despite Lewis never having the opportunity to see how the world came to value and appreciate her unique artwork, her paintings are a testament to her optimism and courage and the joyous way in which she lived her life.

If you have any questions about re-sale royalties or copyright law, please contact the Intellectual Property group.