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.

Is a copyright owners consent required for selling second hand books on e-bay?

The US Supreme Court on Monday agreed to consider whether an eBay seller needs the consent of a copyright owner to import and resell books manufactured abroad.

Though U.S. law gives such freedom under the first-sale doctrine, the idea of applying the rule to foreign works is novel.

Unable to use the doctrine as a defense, Supap Kirtsaeng was ordered by a federal jury in Manhattan to pay $600,000 in damages to John Wiley & Sons for copyright infringement.

For full article see: Courthouse News Service.

DMCA Safe Harbour Provisions

In a much-anticipated ruling with respect to the strength of the safe harbor provisions within the Digital Millennium Copyright Act, the US Ninth Circuit Court of Appeals has affirmed a district court’s decision that Veoh Networks Inc. is protected by the DMCA’s safe harbor provisions from copyright infringement claims brought against it by UMG Recordings Inc..

For full article please see John E. Ottaviani & Glenn G. Pudelka of Edwards Wildman Palmer LLP Boston Office @

Supreme Court OK’s Sales Of Violent Video Game To Kids

The U.S. Supreme Court has struck down California’s ban on the sale of violent video games to children. A divided court majority said the law violates the Constitution’s guarantee of free expression (For report see Nina Totenberg, NPR).

For the Supreme Court decision please press this link.

US Copyright Office To Amend Termination Regulations

The Copyright Office has amended its regulations governing notices of termination of certain grants of transfers and licenses of copyright under section 203 of the Copyright Act. The amendments are intended to clarify the recordation practices of the Copyright Office regarding the content of certain notices of termination as well as the circumstances under which such notices will be accepted by the Office. In particular, the regulations clarify that where an author agreed, prior to 1978, to a grant of rights in a work that was not created until after 1977, a notice of termination of a grant under section 203 may be recorded if it recites, as the date of execution, the date on which
the work was created (Read more:  U.S Copyright Office).