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?
