Andy Warhol's Mona Lisa & Other works sell at Auction for over $150 million, but is there anything to smile about? Artists estate gets Nil; On Resale Rights, Copyright & The Law

This past week in New York, Christie’s latest contemporary art auction, generated a staggering $853 million. Among the art works sold was the late pop artist Andy Warhol’s work which fetched more than $150 million - with his iconic “Triple Elvis” selling for $81.9 million, “Four Marlons,” the artist’s interpretation of Marlon Brando’s from the movie “The Wild One,” selling for $69.6 million, and Warhol’s version of Leonardo Da Vinci’s “Mona Lisa” selling for $5.9 million.

But, is there anything to smile about?

Despite the late artists work doing so well at auction, the artist estate won’t actually get a cut of any of funds generated from the sale of his work.  Unlike composers, filmmakers, or novelists, visual artists typically do not share in the long-term financial success of their works because they are not entitled to earn future royalties. For the most part, this means that visual artists must live off initial sales of their original works. The artist resale right royalty provision (Droit de Suite), developed in the early 20th century by France, is said to address this.

Resale royalties or Droit de Suite are the rights of visual artists to receive a percentage of the revenue from the resale of their works in the art market. The right was originally provided for in Article 14bis ter of the Berne Convention for the Protection of Literary and Artistic Works 1948; the U.S. joined the Convention in 1989, however Article 14ter is an optional right and subject to the rule of reciprocity. Meaning that artists are only able to take advantage of the Droit de Suite if their work is sold in countries having such a right. In the U.S., only California has a Droit de Suite, the California Resale Royalties Act in 1976, which provides visual artists a royalty of 5% of the sale proceeds if the seller resides in California or if the sale takes place in California. But there is now a bill in Congress, called ART — American Royalties Too, which means this may be about to change. The new bill is proposing that 5 percent of every auction sale go to the artists or their descendants, with a cap of $700,000.

Works of visual art have been said to be produced on singularly, the value of which is said to be derived from its scarcity. Marie-Andree Weiss over at the IPKAT makes that point that when “France first adopted such a right in 1920, legislators were shown during the debate a drawing of a child in rags pointing at a painting that sold for a hefty sum at an auction and wailing ‘It’s one of Papa’s paintings!’” Without Droit de Suite visual artists, unlike other authors, are said to be excluded from the most significant profits that their works may generate over time, especially when a sale at auction increases in price.

In continental Europe, the EU has sought to harmonise the right by requiring all member states to implement a new common scheme from 2006 (via Directive 2001/84/EC).  Therefore, in the UK, along with copyright laws, visual artists in the United Kingdom (UK) also enjoy rights on the resale price of their work. (Under the Artist’s Resale Right (Amendment) Regulations 2011).  The Droit de Suite, or resale royalty right, entitles artists in the visual arts (or their heirs up to 70 years after their deaths) to a certain percentage of the resale price of their works after the original sale, whenever they are resold by commercial dealers or auctioneers. The resale royalty right is typically inalienable and lasts for the life span of the artist and 70 years beyond.

The royalty is subject to ‘compulsory collective management', which means that artists do not have to claim their royalty themselves; art market professionals are responsible for paying the ARR into a not-for-profit-share artists' collecting society, which then pays its artist members. Two such collecting societies operate in the UK: the Design and Artists Copyright Society (DACS) and the Artists' Collecting Society (ACS).

The Goss-IPgirl has always been a strong contender of turning ideas into livelihoods, but with ardent interest wonders, if an artist work is sold, and re-sold, is there a case to be made (Bourdieu & cultural capital) that their work increases in reputational value, which therefore means that any new works the artists produce will subsequently increase in economic value? And even if we accept that the Copyright Act in the U.S. fails to accommodate the particular nature of visual art, (as critics have pointed out) is it really the role of copyright law to ensure both statutory and market uniformity among authors?

Keen to know your thoughts here?