Resale Rights For Artists

Are you a visual artist? Have you sold works of art that are now being resold? You may be entitled to a share of the proceeds of sales of your physical works that are no longer owned by you.

An artist’s resale right, otherwise known as the “Droit de Suite” gives artists a right to a royalty from the proceeds of re-sales of their works.

In Europe, the right was introduced in 2006. It entitles artists to a share of the proceeds from sales of their works by an art market professional such as a gallery, auction house, dealer or agent. The right, which does not apply to a first sale of a work, applies to sales exceeding Euros 1000 and is calculated on a sliding scale (from 4% going down to 0.25%) with an earnings cap of Euros 12,500.

In the UK, which ratified the European artist resale right in 2006, the right applies to works created by artists who have been dead for less than 70 years. In order to secure resale rights artists must do so through an approved collecting society. One such collecting society is the Design and Artists Copyright Society in the UK.

The right exists in various forms in as many as 50 jurisdictions around the world. Interestingly, the right has developed a long way since an intergovernmental copyright committee held in Geneva in 1958 stated that “only four or five States have, so far, included this right in their national legislation”.

In the US, the right was introduced into Californian law back in 1976. The California Resale Royalty Act (Civil Code section 986) entitles artists, to 5 percent of the resale of any work of fine art of $1,000 or more and continues for the life of the artist plus 20 years.

Towards the end of 2011, a bill called ‘The Equity for Visual Artists Act 2011’ was put forward in the US. This bill, when accepted, will require large art auction houses to pay 7% royalties on re-sales of artworks for over $10,000. The rule would only apply only to works of living artists, and deceased artists whose works are still protected by copyright. Further, only auction houses with annual sales of $25 million or more would have to pay such royalties. The rule will not apply to auction sites that operate only on the internet or to private sellers. An interesting alternative point of view on this bill and other related matters can be found here.

Sadly, the right does not exist in Israel. This essentially means that artists need to cater for such scenarios contractually.

ECHR: Public Persons and the Right to Privacy

An interesting case recently decided by the European Court of Human Rights, involved a German newspaper article with pictures of a famous actor about his arrest on possession of cocaine at a beer festival. The Hamburg Regional Court confirmed an injunction, requested by the actor, against any further publication of both articles.  The Newspaper’s appeal of the injunction against publication of the articles was dismissed by the Hamburg Court of Appeals. The German Federal Constitutional Court declined to decide the case, without stating the reasons for its decision. Therafter, the case was referred to the European Court of Human Rights.

The ECHR deemed that the articles on the actor’s criminal conviction were based on public records that were of general interest. As far as the popularity of the actor, the Court noted that he was a well-known television personality. The ECHR also pointed out that because the individual concerned had disclosed details of his life, he should have expected that his right to respect for his private life would be limited. For the full note on this subject written by Theresa Papademetriou please see The US Library of Congress Global Legal Monitor


European Commission Blueprint On IP

The European Commission has set out its blueprint on Intellectual property rights (IPR). According to a Commission Press Release, …”technological change and, in particular, the growing importance of online activities, have completely changed the world in which IPR operate. The existing mix of European and national rules are no longer adapted and need to be modernised. That is why the Commission has adopted today a comprehensive strategy to revamp the legal framework in which IPR operate. Our objective is to enable inventors, creators, users and consumers to adapt to the new circumstances and to enhance new business opportunities. The new rules will strike the right balance between promoting creation and innovation, in part by ensuring reward and investment for creators and, on the other hand, promoting the widest possible access to goods and services protected by IPR. Getting this balance right will make a real difference to businesses (from the individual artist working alone to the big pharmaceutical companies) by encouraging investment in innovation. This will benefit the EU’s growth and competitiveness which is delivered through the single market. Consumers will benefit from wider and easier access to information and cultural content, for example online music. The strategy deals with many issues to ensure IPR are covered comprehensively – from the patent a business needs to protect an invention to tackling the misuse of such inventions via a proposal also adopted today which will strengthen action on counterfeiting and piracy. Among the first deliverables of this IPR overall strategy are today’s proposals for an easier licensing system for so-called “orphan works” that will allow many cultural works to be accessible online, and for a new regulation to reinforce customs actions in fighting trade of IPR infringing goods…”.