…the scenes that presented themselves were such as no tongue or pen can convey the slightest idea of. In the first, two famished and ghastly skeletons, to all appearance dead, were huddled in a corner on some filthy straw, their sole covering what seemed a ragged horse-cloth, and their wretched legs hanging about, naked above the knees. I approached in horror, and found by a low moaning they were alive; they were in fever – four children, a woman, and what had once been a man … in a few minutes I was surrounded by a least 200 of such phantoms, such frightful spectres as no words can describe. [1]

Prayer for the Potato Crop is a painting by Jean-François Millet, painted in 1857 soon after a devastating blight that ravaged Europe. Specially commissioned by an American, the painting was never collected. Maybe it was the title that caused this rejection, or the realisation that the six figures would ultimately succumb to hunger and their ghosts would hang on his wall? Maybe a painful reminder of the client’s birthplace for famine hit Ireland especially hard where millions either starved to death or were forced to emigrate.

A century later the Irish state television (known as RTE) began broadcasting what is known as the Angelus, a one-minute period of prayer or contemplation accompanied to the ringing of church bells. It occurs every day at 6pm, right before the evening news. Whether you are religious or not, in a country whose population was halved by the blight it seems appropriate to reflect on your blessings before you eat your evening meal and while the news makes you fully aware of the inequalities that still exist on this globe.

Fortunately Ireland no longer lives under the threat of hunger. Today we are in postcolonial times, a time of globalisation where an Australian artist, due to his father’s migration from poverty, can live on a property in Western Europe, on a site where it is said the first recorded death in the great potato famine occurred; an area so rich in fish the coastal havens are full of trawlers and where you can literally put a stick in the ground and it will grow. It makes one ask: How could a famine as described above in the letter by N. M. Cummins have started in a place so full of abundance? His letter was describing people who literally starved in and around my studio and vegetable garden, whilst simultaneously, a few miles north, the market forces were loading ships with food products to be exported for profit. It was a cruel and unfair world at this time.

By 1859, Jean-François Millet seemed to be facing his own famine for during this year he added a church steeple to Prayer for the Potato Crop and changed its name to The Angelus. Millet’s prayers were answered and he sold the painting for 1200 French francs. It then changed hands a number of times before the artist died. Post mortem, The Angelus again sold but this time for 1 million French francs. The sale caused a sensation not just because of the price, but because Millet’s family were by this time again living in poverty. Millet’s family’s fate led authorities to ask how a major contributor to French culture could leave his family destitute when work loaded with his intellectual property was selling for millions? It did not seem right or fair. The French government responded and in the 1920s created the law Droit de suite, or what might be better understood as a royalty payment that would pass to the artist and their heirs on the resale of a work of art. This simple law acknowledges that visual art, similar to literature, film and music, contains intellectual property beyond the tangible object. It’s something we all understand when we buy a DVD. We know that the authors have further rights over the content that the purchaser does not own by buying the film [2] –- we do not own the film, we possess the right to watch the film.

Droit de suite actually means ‘right to follow’, and the term as well as the law have now emigrated from France and attained global recognition. It’s a very positive example of globalisation for the law has grown from a regional one, into one that protects the rights of artists in over fifty countries. It is a formal recognition and respect for the intellectual property that not only underpins the arts but also globalisation itself.

One only has to see the amount of Australian Indigenous art in Paris being promoted though our embassy, the art fairs and galleries to realise that Australian Indigenous art is big international business. It speaks volumes of the government’s determination to promote what they have called ‘Australian Cultural Product’ in the free global market. Just as we have sold our wine, uranium and iron ore, we seem to believe in globalisation wholeheartedly except when it comes to the Australian art market. For Australia has never adopted droit de suite law. Why?

Listen to the views by former Attorney General Philip Ruddock echoed by many who inhabit the art business today: ‘ … It would bring little advantage to the majority of Australian artists whose work rarely reaches the secondary art market and would also adversely affect commercial galleries, art dealers, auction houses and investors.’ [3] This might have been written by the famous British bureaucrat Sir Humphrey Appleby, however he would have expressed it something like this: ‘Yes, Minister, of course the law would be of no benefit to people it does not apply to, but it would impinge on the businesses of the people commercially exploiting those same irrelevant people.’

Ruddock went on to give another, even more bizarre reason of why we should not have droit de suite: ‘Research shows … that a resale royalty scheme would not end disadvantage for Indigenous artists.’ [4] The only question to be asked in response is: should a re-sale law on art aspire to end ‘disadvantage’ for Indigenous Australian people, or should it simply be a law that is part of a fair society that aspires to protect the intellectual property rights of creative people? Delving further into the Ruddock view we realize that what he is really doing is stripping art of any intellectual property; it is simply a commercial product that is manufactured and then sold.

A senior Australian artist once told me, the ultimate judge of art, proven over centuries, is the art market. It is society’s ultimate democratic mechanism that values what is important and what is not. Try and buy a Francis Bacon painting and you will understand this point. That is not to say the markets are always right, however the art market is actually a process of continual re-evaluation. Of course it has institutional assistance over time but the auction market is the precursor to the connossieurship of public museums and galleries which, encumbered with bureaucracy and limited funds, are often slow to react. Our society is built on a market economy that is itself entwined into a global market. To work properly, markets whether local or global need to be properly regulated and fair. Part of that fairness is to protect the intellectual property of the creator and the only way a market knows how to do that is to put a value on it. And how do we value an artist’s intellectual property? Well, in fifty countries they do it the same way we value a chemical company which invents the technology to create a disease-free crop of vegetables, by protecting their commercial rights through intellectual property laws.

The simple fact is that every important artist has a run of success in the secondary market at some stage. It could be at the start of their career or at the end, anywhere in between or even after they have died. From the point their work enters the market it begins a process where over time the work is either removed from the market into the safe haven of our public museums and galleries (therefore becoming rarer and more expensive), or alternatively its importance is downgraded and it exits offstage to sit amongst the body of work that resides at a point where many are called but few are chosen. However it is irrefutable that every ‘successful’ artist moves through the brutally blunt instrument that is known as the art market. It is where the art is reduced to a commodity, simply widgets to be bought and sold no matter how precious they might have been or will become. If it is visually or conceptually worthy, it will at some stage find its way into the market for assessment no matter what it is; even canned artist shit such as Piero Manzoni’s [5] can enter the market to be evaluated.

Despite Australian law being slow in recognising the intellectual property of art, there is light on the horizon. Nearly ninety years after it was introduced in France and eight years after a 10% goods and services tax was levied on every primary art sale in Australia, the Australian Labor Government is finally committing itself to pass a form of droit de suite. However there is a problem, for as it is drafted this belated legislation is badly flawed, so much so that it runs counter to the spirit of the reform and this government’s own arguments about globalisation. It seems an appropriate reflection of the Australian psyche, where we really strive to think globally however a small-mindedness or resentment envelops our thinking when we come to supporting our (visual) artists.

Droit de suite was shunned by successive governments on absurd reasoning, and unfortunately the Labor Government now intends to introduce a compromised version that will not be recognised in the global economy nor assist the previous or current generation of artists. It will not matter whether you are black or white. If you are a dead, elderly or an infirm Australian artist, and the market has determined you have made a tremendous contribution to Australian culture (even if only momentarily), you are about to be the beneficiary of a law that is so thoroughly compromised it’s akin to the Duke of Wellington promising the starving Irish a new soup kitchen, but only after they grow the next potato crop and only on the condition it is successful! As for the rest of us, well, maybe they will let us eat cake instead!

John Kelly is an English, Australian and Irish artist; www.johnkellyartist.com

Article reprinted with permission from Art Monthly Australia, #218, April 2009; the image for the original Circa Online version are no longer available.