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Pryor Cashman Partner Megan Noh, who co-chairs the firm's Art Law Group, was quoted in Artnet about resale restrictions in the context of primary market art sale invoices.
In the “Taking It to Court” section of the Fall 2022 Artnet Intelligence Report, Megan said that the go-to option for artists is not bringing a lawsuit, but rather simply leveraging the fact that they have a contractual right to pursue some other resolution, such as getting work pulled from auction:
Suing a wealthy patron for flipping a painting is normally the last resort for a gallery. That is why, in addition to employing technological and social measures, artists are increasingly seeking legal advice on beefing up their sales contracts. Megan Noh, a partner at Pryor Cashman LLP in New York, recommends that clients consider crafting invoices that make them third-party beneficiaries…She is also a fan of “contractual provisions that require a buyer who resells work to share a percentage of their resale profit with the artist.”
This requirement is part of a menu of provisions available to artists. Others include a period during which the artwork can't be sold at all and a right of first refusal for the artist or the artist's gallery. The non-resale periods vary but often range from three to five years, according to lawyers and dealers.
“I am trying to advocate for the artists and show how the artists and galleries can collaborate and share the burden,” Noh said. “It's to everybody's benefit to be able to control the market.”
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