The New York Times’s Patricia Cohen puts together a compendium of powerful arguments in response to the California class action case seeking enforcement of its Droit de Suite laws. Beginning with the now-famous story of Robert Rauschenberg’s explosion at the Scull sale, Cohen wryly comments that there is no charge to the artist when a work sells at a loss:

John Henry Merryman, a law professor at Stanford University and an expert on art and cultural-property law, said that advocates of the droit de suite ignore how the art market operates. The increased price for Rauschenberg’s “Thaw” at the Scull auction was due not only to the artist’s continuing creative efforts, he said, but also to the dealers, collectors, auction houses and critics who took a risk in supporting and buying Rauschenberg’s work before he was famous. He noted that the increased price for a single painting simultaneously raises the value of all the artist’s work.

Mr. Merryman dismissed the argument that the droit de suite was analogous to music or literary royalties. “The idea that somehow artists are hurt because they don’t have copyright is nonsense,” he said. Artists retain copyright and must be compensated if their work is reproduced. The difference, he explained, is that “the realization of a work of art is in exhibition, not in duplication.”

The Whitney Museum of American Art at one time compensated artists for exhibiting their work. Mr. Merryman said the idea never caught on, but that it made more sense.

Artists File Lawsuits, Seeking Royalties (New York Times)