Resale Royalties for Artists?

December 15, 2013 0 Comments

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Artists creating original artwork don’t benefit from the copyright law in the same way that authors and composers do. The artists tend not to sell copies of their works, so they only receive payment on the sale of the original work. On the other hand, authors and composers gain from the sales of copies of what they’ve created.

Many nations, starting with France in 1920, tried to balance this by giving artists a right to part of the proceeds when art was resold (subject to various restrictions). Many nations have now enacted such laws. In 1977, California enacted a resale proceeds law, but that law was at least partially struck down in a recent case holding that California cannot regulate transactions without a sufficient connection to that state. Artists advocates are appealing that decision.

Congress, pursuant to the Commerce Clause, would be able to regulate such sales. Supporters of a resale proceeds act have moved forward with their efforts to enact a national law. The Copyright Office stated on December 13, 2013:

“The U.S. Copyright Office today publicly released a report on the issue of resale royalties for visual artists, or the ‘droit de suite.’ The report was requested by Congressman Jerrold Nadler and Senator Herb Kohl in 2012, and is an adjunct to the Office’s 1992 report on the same topic. Some seventy countries have enacted resale royalty provisions in their laws, over thirty of them since 1992, including the United Kingdom, which is home to one of the world’s most significant art markets.

“The Copyright Office has concluded that certain visual artists may operate at a disadvantage under the copyright law relative to authors of other types of creative works. Contrary to its 1992 report, the Office is supportive of further congressional exploration of a resale royalty at this time. It also supports exploration of alternative or complementary options that may take into account the broader context of art industry norms and art market practices, for example, voluntary initiatives or best practices for transactions and financial provisions involving artworks. The report reflects the diversity of public comments received by the Office over the past year, and makes a number of observations and recommendations that Congress may wish to consider in its deliberations.”

The full report is available at http://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf.

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