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Coming to the Rescue of Starving Artists

Whitney Kimball looks at why American visual artists don't profit from resales the way European artists do:

U.S. copyright law protects “published” works, and a work of art is not “published,” simply made and sold—so once a work of art is out of an artist’s hands, the future profits, too, are gone. This system is unique to the art world; in other fields, artists are understood to have the right to a share of the proceeds of their works long after the works are first made....

...Meanwhile, artist resale royalties (or droit de suite) have long been a basic right in 70 other countries; France has had such a system since 1920, and the European Union standardized it across the continent in 2001. They’re so common that the U.S. Copyright Office specifically revised its position on artists’ royalties last year, recommending that Congress revisit the issue.

Now, Congress has that chance: the recently proposed American Royalties Too (A.R.T.) Act, a bill which would give artists a 5 percent cut of the profits when their works are resold at auction. The bill has its flaws: It applies only to auctions and not private dealings. But 5 percent is also a slim and fair share, compared with the auction houses’ 12to 25 percent buyers’ premiums—though even 5 percent looks too fat to slip under the door. An earlier version of the bill, the Equity for Visual Artists Act, failed to attract a single co-sponsor in 2011, and over the past few years, Christie’s and Sotheby’s have been raining upward of $1 million on lobbying against royalties. At this writing, govtrack.us gives the A.R.T. Act a 2 percent prospect of being enacted.

It’s telling that in more than 70 countries that have now adopted some form of artist royalties, the only major debate has come from the U.K., which has the second largest art market after the U.S., and adopted artist royalties in 2006. When droit de suite was proposed for the U.K. in 2000, the British Art Market Federation forecasted implosion: Even a 4 percent royalty could send thousands of jobs overseas, they warned, and affect five times as many sales as covered by droit de suite. The alarms managed to stall the implementation of droit de suite in the U.K. until 2006. But years after implementation, studies have shown that the law barely affected sales.

If that’s any indication, artists’ royalties don’t harm the market. They can provide some measure of security to artists, especially later in life; they are common most everywhere in the world; and they are recommended by the U.S. Copyright Office. But all this is beside the point. America forgot about a basic rights law, and for many, the conversation comes a lifetime too late.

The U.S. Copyright office report linked to in the article is a model of thorough yet readable legal analysis. Among other things, it recounts that the origin of the droit de suite was a French engraving (from p.4, edited for clarity):

The resale right, or droit de suite, as it is often called in Europe, derives from a bundle of privileges commonly and collectively known as “moral rights.” Where other moral rights assure attribution (paternity) or protect against mutilation (integrity), the resale right provides visual artists with an opportunity to benefit from the increased value of their works over time by granting them a percentage of the proceeds from the resale of their original works of art. France was the first country to implement droit de suite in 1920, after a widely published lithograph by artist Jean-Louis Forain poignantly portrayed “starving artists.” ... Forain’s lithograph, which depicts two impoverished children looking into an auction house window where a painting, apparently created by their father, is on display for a high price, with the caption “Un tableau de Papa!” (“One of father’s paintings!”)


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