Pryor Cashman Partner Megan Noh, co-chair of the Art Law Group and Non-Fungible Tokens (NFTs) Practice, spoke with The Art Newspaper about the rules governing resale of artworks.
In "Resale rules have become the art world norm: what are they and are they enforceable?," Megan explains that:
"There is very little relevant precedent in US case law—a handful of published decisions on right of first refusal, but almost nothing on the various types of other resale restrictions."
...As in English law, a resale clause has to be clear and specific. It must also be "reasonable". Noh says: "Under US law, a contract has to reflect consideration—something of value being provided by both parties. If a collector is acquiring a work directly from the artist's studio without having to work through an intermediary, or is buying from the artist's gallery but is jumping the waitlist or otherwise getting priority access to a limited supply of works, any of those things are likely to represent sufficient consideration to the collector. And it's clear what value the artist is seeking in exchange—market protection."
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