When Celebrities Hang Out At The Pawnshop

By Dave Rein

It is no secret that banks large and small pulled the Persian rug (perhaps a green one for St. Patrick's Day) out from art buyers who sought to finance their purchases with a loan.  The Wall Street Journal noted this trend back in April 2008.

So given the current economic mess we are in, it should not come as a surprise that the borrowing-to-buy-art trend has taken a step in the other direction -- the number of pawnshops dedicated to loaning money in return for high-end art as collateral is on the rise.  An article in the New York Times mentioned several prominent art pawnshops:

It is also not unusual for auction houses such as Christie's and Sotheby's to provide a similar service as the art pawnshops by providing a bridge loan to tide the seller over until the auction is over and the proceeds have been collected.  But, the auction houses generally did not offer their clients the ability to pawn art.  In the bad old days of economic prosperity, someone pledging his or her Andy Warhol used to have to stand in line at a traditional pawnshop behind the guy pledging his toaster oven.  Not anymore apparently.

The part of the NYT article that caught my eye was that Annie Leibovitz, one of the most famous celebrity photographers of our time, pledged all of her photographs to Art Capital Group for $15.5 million.  The terms  include not only all of the photographs and contract rights of those that she has taken, but also all of the photographs that she will take.  The Guardian has an excellent audio discussion of the Leibovitz transaction and the possible reasons why Ms. Leibovitz may have been compelled to pledge all of her photographs.  

The photograph that Ms. Leibovitz takes next week?  Pledged to the Art Capital Group.  Next year?  Art Capital Group gets those as well.  That's on top of the 6 to 16% interest rate.  Those are tough terms.

Presumably she gets to receive the income stream from fees and royalties that her photographs generate unless her loan goes into default.  She has a number of projects in the works which should bring in a tidy wad of cash so nobody should count her out yet.

I am still curious about the remaining terms of these types of loans and how, if at all, they would affect her copyright ownership and the right to enforce them.  During the term of the loan, does she retain all rights to the copyrights?  Does she retain the right to enforce the copyright?  My suspicion is that Ms. Leibovitz retains her ownership and enforcement rights unless the loan goes in default.

But what other terms does the contract provide?  For example, it would seem that among the terms is the requirement that she enforce the copyrights so as to protect the value of the pledged collateral, but how much discretion does she have in deciding whether to sue a possible infringer?  Please let me know if you are familiar with the loan terms and the impact on her copyrights.

If there is a clear winner in this story, it is probably Art Capital Group because others looking to pawn their art may be more inclined to use Art Capital Group knowing that prominent artists themselves have pledged their work to it.  But, will it be a short-term winner?  Will there be a great demand to pawn expensive pieces of art when the economy bounces back and we can once again crawl out of the Stone Age?