Droit de suite

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Droit de suite (French for "right to follow") or Artist's Resale Right (ARR) is a right granted to artists or their heirs, in some jurisdictions, to receive a fee on the resale of their works of art. This should be contrasted with policies such as the American first-sale doctrine, where artists do not have the right to control or profit from subsequent sales.

Contents

History

The Angelus was sold by Millet for 1,000 francs in 1865, but just 14 years after Millet's death in 1889 it was sold by the copper merchant Secretan for 553,000 francs JEAN-FRANCOIS MILLET - El Angelus (Museo de Orsay, 1857-1859. Oleo sobre lienzo, 55.5 x 66 cm).jpg
The Angelus was sold by Millet for 1,000 francs in 1865, but just 14 years after Millet's death in 1889 it was sold by the copper merchant Secrétan for 553,000 francs

The droit de suite was first proposed in Europe around 1893, in response to a decrease in the importance of the salon, the end of the private patron, and to champion the cause of the "starving artist". [1] Many artists, and their families, had suffered from the war, and droit de suite was a means to remedy socially difficult situations. [2]

According to Renaud Donnedieu de Vabres, droit de suite was created in France following the sale of Millet's 1858 painting, the Angélus , in 1889 at the Secretan sale.[ citation needed ] The owner of the painting made a huge profit from this sale, whereas the family of the artist lived in poverty.

Legislation

International

The Berne Convention of 1971 enshrines authors' and artists' "inalienable right to an interest" in a resale of their work, but has no legal force in the absence of national legislation implementing it. [3]

European Union

The 2001/84/EC directive mandates a somewhat uniform system of droit de suite across the European Union. This directive is controversial in the United Kingdom. [4]

France

In France, this system has been in force since 1920 [5] through article L122-8 of the Code of intellectual property. [6] It will be reformed by article 48 of the DADVSI law, which implements directive 2001/84/EC. During discussions in the French Parliament leading to this law, it was argued that in practice, the droit de suite is only paid at auctions, and that it thus disfavors the Paris art marketplace compared to London or New York City. Following DADVSI, a government regulation (through a decree) is to set degressive rates and maximal fees so that the Paris marketplace is not hindered. [7]

United Kingdom

The Artist's Resale Right (ARR) was enacted in the UK in 2006 to implement the EU Directive. [8]

United States

The 1977 California Resale Royalties Act (CRRA), (Civil Code section 986), [9] applied to all works of fine art resold in California, or resold anywhere by a California resident, for a gross sale of $1000 or more. It had mandated a five percent royalty on the resale price of any work of fine art. An artist was able to waive this right "by a contract in writing providing for an amount in excess of five percent of the amount of such sale." [10] It was the only law of its kind implemented in the United States. [11] At least one scholar has proposed that this law is unconstitutional in that it effects a Fifth Amendment taking of private property. [10]

The California Resale Royalty Act, was struck down as unconstitutional on May 17, 2012, because it violated the US Constitution Interstate Commerce clause, ending a 35-year run that entitled artists to a royalty payment upon the resale of their works of art under certain circumstances. The ruling by Judge Jacqueline H. Nguyen of the U.S. District Court, Central District of California, is pending appeal in the 9th Circuit Court of Appeals. Judge Nguyen added: [12]

The Court finds that the CRRA explicitly regulates applicable sales of fine art occurring wholly outside California [emphasis added]. Under its clear terms, the CRRA regulates transactions occurring anywhere in the United States, so long as the seller resides in California. Even the artist---the intended beneficiary of the CRRA---does not have to be a citizen of, or reside in, California....Therefore, the CRRA violates the Commerce Clause of the United States Constitution.

In September 2012, the U.S. Copyright Office published a "Notice of Inquiry" regarding establishing an artist "resale royalty right" in the US. [13] The Notice was published in response to a request by Representative Jerrold Nadler and Senator Herb Kohl, who had introduced droit de suite legislation in 2011. [14] The Copyright Office's subsequent report endorsed "congressional consideration of a resale royalty right, or droit de suite, which would give artists a percentage of the amount paid for a work each time it is resold by another party." [15] A follow-up bill was introduced in 2014, the American Royalties Too Act, and was vigorously opposed by auction houses. [16] The bill died in committee. [17]

On July 6, 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that the California Resale Royalties Act is preempted by the federal Copyright Act—which does not recognize an artist's right to resale royalties. [11] [18] Now, only works resold from January 1, 1977 to January 1, 1978, when the Copyright Act became effective, are eligible for the royalty payment. [19]

Australia

The Resale Royalty Right for Visual Artists Act 2009 [20] gives the creator of an artwork the right to receive a royalty when their work is resold on the commercial art market. For artworks already in existence at 9 June 2010, the royalty applies only to the second and subsequent resales after that date. Under clauses 22 and 23 of the act artists have a case by case right to instruct the appointed government agency the Copyright Agency Ltd, to not collect and/or make their own individual collection arrangements.

The royalty is calculated as 5% of the sale price, but does not apply where that price is less than $1,000. It is payable, via an official collecting agency, [21] or if the creator chooses (on a case by case basis) it can be paid directly to the creator, on resales made during their lifetime and to their heirs for resales made up to 70 years after the creator's death. The primary legal obligation to pay the royalty rests on the seller. However, in economic terms, it may effectively be passed on to the purchaser.

Eligible artworks include original works of graphic or plastic art, including pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware, photographs, fine art textiles, installations, fine art jewellery, artists' books, carvings and multi-media artworks.

The royalty is restricted to Australian citizens or residents, though there is provision for reciprocal rights to be extended in the future to persons resident in other jurisdictions with compatible royalty schemes.

The introduction of the scheme was controversial, as it has been elsewhere. [22] During the first three years of its operation, royalty payments totaling $1.5m were made to about 650 artists for 6,800 transactions, with about 50% going to Indigenous artists. The highest individual royalty was A$50,000. Most recipients have received amounts ranging from A$50 to A$500. [23] The average transaction cost is reportedly $30 AU. [24]

A review of the scheme was announced in June 2013. [25]

Philippines

The Intellectual Property Code of the Philippines (Republic Act 8293) gives the author/artist or his heirs a 5-percent share in the gross proceeds of the sale or lease of the original painting, sculpture, or manuscript, subsequent to its first disposition by the creator. This right exists during the lifetime of the author or artist and fifty years after his/her death.

See also

Related Research Articles

The copyright law of the European Union is the copyright law applicable within the European Union. Copyright law is largely harmonized in the Union, although country to country differences exist. The body of law was implemented in the EU through a number of directives, which the member states need to enact into their national law. The main copyright directives are the Copyright Term Directive, the Information Society Directive and the Directive on Copyright in the Digital Single Market. Copyright in the Union is furthermore dependent on international conventions to which the European Union or their member states are part of, such as TRIPS Agreement or the Berne Convention.

A performance rights organisation (PRO), also known as a performing rights society, provides intermediary functions, particularly collection of royalties, between copyright holders and parties who wish to use copyrighted works publicly in locations such as shopping and dining venues. Legal consumer purchase of works, such as buying CDs from a music store, confer private performance rights. PROs usually only collect royalties when use of a work is incidental to an organisation's purpose. Royalties for works essential to an organisation's purpose, such as theaters and radio, are usually negotiated directly with the rights holder. The interest of the organisations varies: many have the sole focus of musical works, while others may also encompass works and authors for audiovisual, drama, literature, or the visual arts.

A royalty payment is a payment made by one party to another that owns a particular asset, for the right to ongoing use of that asset. Royalties are typically agreed upon as a percentage of gross or net revenues derived from the use of an asset or a fixed price per unit sold of an item of such, but there are also other modes and metrics of compensation. A royalty interest is the right to collect a stream of future royalty payments.

Bauer & Cie. v. O'Donnell, 229 U.S. 1 (1913), was a 1913 United States Supreme Court decision involving whether a purchaser of a patented product bearing a price-fixing notice incurs guilt of patent infringement by reselling the product at a price lower than that which the notice commands. A divided Court (5–4) held that it was not.

The first-sale doctrine is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. The first sale doctrine does not apply to patented processes, which are instead governed by the patent exhaustion doctrine.

APRA AMCOS consists of Australasian Performing Right Association (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS), both copyright management organisations or copyright collectives which jointly represent over 100,000 songwriters, composers and music publishers in Australia and New Zealand. The two organisations work together to license public performances and administer performance, communication and reproduction rights on behalf of their members, who are creators of musical works, aiming to ensure fair payments to members and to defend their rights under the Australian Copyright Act (1968).

The droit d'auteur or French authors' rights law, is in the jurisdiction of France a set of exclusive prerogatives available to a creator over his or her intellectual work, as part of the intellectual property area of law. It has been very influential in the development of authors' rights laws in other civil law jurisdictions, and in the development of international authors' rights law such as the Berne Convention. It has its roots in the 16th century, before the legal concept of copyright was developed in the United Kingdom. Based on the "rights of the author" instead of on the right to copy, its philosophy and terminology are different from those used in copyright law in common law jurisdictions. The term droit d’auteur reveals that the interests of the author are at the center of the system, not that of the investor.

The California Arts Council functions as a state agency headquartered in Sacramento, California. Its board comprises eight council members who receive appointments from both the Governor and the California State Legislature. The agency's objective is to promote the advancement of California's cultural landscape through arts, culture, and creativity.

<span class="mw-page-title-main">DADVSI</span> French bill concerning copyright law

Loi DADVSI is the abbreviation of the French Loi relative au droit d’auteur et aux droits voisins dans la société de l’information. It is a bill reforming French copyright law, mostly in order to implement the 2001 Information Society Directive, which in turn implements a 1996 WIPO treaty.

<span class="mw-page-title-main">Resale Rights Directive</span>

Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It creates a right under European Union law for artists to receive royalties on their works when they are resold. This right, often known by its French name droit de suite, appears in the Berne Convention for the Protection of Literary and Artistic Works and already existed in many, but not all, Member States. As a result, there was a tendency for sellers of works of art to sell them in countries without droit de suite provisions to avoid paying the royalty. This was deemed to be a distortion of the internal market, leading to the Directive.

<span class="mw-page-title-main">Freedom of panorama</span> Permissive provision in copyright laws

Freedom of panorama (FOP) is a provision in the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images of buildings and sometimes sculptures and other art works which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images. Panorama freedom statutes or case law limit the right of the copyright owner to take action for breach of copyright against the creators and distributors of such images. It is an exception to the normal rule that the copyright owner has the exclusive right to authorize the creation and distribution of derivative works.

<span class="mw-page-title-main">Copyright and Information Society Directive 2001</span> 2001 European Union Directive on Copyright

The Copyright and Information Society Directive 2001 is a directive in European Union law that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome.

Copyright Agency Ltd (CAL) is an Australian not-for-profit public company that facilitates reuse of copyrighted material by third parties, collecting fees and delivering the payments to the creators. Its business names include Viscopy, Rightsportal and Smarteditions.

The French HADOPI law or Creation and Internet law was introduced during 2009, providing what is known as a graduated response as a means to encourage compliance with copyright laws. HADOPI is the acronym of the government agency created to administer it.

The California Resale Royalty Act, which went into effect on January 1, 1977, entitles artists to a royalty payment upon the resale of their art if the transaction takes place in California or the seller is based in the state. It was the only law of its kind implemented in the United States. On July 6, 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that the California Resale Royalties Act was preempted by the Copyright Act of 1976. Now, only works resold from January 1, 1977 to January 1, 1978, when the Copyright Act became effective, are eligible for the royalty payment.

Artists' Collecting Society (ACS) is a not-for-profit Community Interest Company dedicated to the collection and distribution of Droit de Suite or Artist's Resale Right (ARR) Royalties.

Art and culture law refers to legal aspects of the visual arts, antiquities, cultural heritage, and the art market and encompasses the safeguarding, regulation, and facilitation of artistic creation, utilization, and promotion. Practitioners of art law navigate various legal areas, including intellectual property, contract, constitutional, tort, tax, commercial, immigration law, estates and wills, cultural property law, and international law to protect the interests of their clients.

VAGA is an artists collective dedicated to improving mental health and fighting cognitive decline through art therapy. The organisation brings together artists, clinicians and academic psychologists to foster research collaboration and the development of new art therapies. Vaga separated from the Artists Rights Society in 2018 and is now a distinct entity with a separate mission focused on mental health.

<span class="mw-page-title-main">The Artist's Reserved Rights Transfer and Sale Agreement</span>

The Artist's Reserved Rights Transfer and Sale Agreement is an open-source legal contract for the transfer and sale of an individual work of art in any medium, material or immaterial, including digital art. The agreement was conceived by curator, dealer, and publisher of conceptual art Seth Siegelaub, and drafted by lawyer Robert Projansky as a means to "remedy some generally acknowledged inequities in the art world, particularly artists lack of control over their work and participation in its economy after they no longer own it". The agreement specifies the rights, royalties and responsibilities of the collector (purchaser) relative to the original creator.

References

  1. ↑ Ricketson, Sam (June 2015). "Proposed international treaty on droit de suite/resale royalty right for visual artists". cisac.org. CISAC. Retrieved 7 June 2024. "The concept of a droit de suite for visual artists was introduced by Albert Vaunois in an article in the Chronique de Paris in 1893..." (pp. 8-9)
  2. ↑ Assemblee-nationale.fr (in French)
  3. ↑ Berne Convention for the Protection of Literary and Artistic Works, Paris, 1971, Article 14ter
  4. ↑ Grant, Daniel (11 January 2012). "'Droit de Suite' Debate Heats Up".
  5. ↑ Tom Flynn, Letter to the editor, London Review of Books43:1 (7 January 2021)
  6. ↑ Code de la propriété intellectuelle : Chapitre II : Droits patrimoniaux
  7. ↑ Assemblee-nationale.fr (in French)
  8. ↑ Simon Stokes, Artist's Resale Right (Droit de Suite): UK Law and Practice, 3rd edition, 2017, ISBN   1-903987-40-7
  9. ↑ "California Civil Code Section 986 - California Attorney Resources - California Laws". law.onecle.com.
  10. 1 2 Barker, Emily (10 December 2009). "The California Resale Royalty Act: Droit De [Not So] Suite". SSRN   1663016.
  11. 1 2 Grant, Daniel (2018-07-13). "Should Artists Get Royalties if Their Work Is Resold? Europe Says Yes, US Says No". Observer. Archived from the original on 2018-07-13. Retrieved 2021-05-17.
  12. ↑ "BLOG: Federal Court Finds California Resale Royalties Act Unconstitutional". 21 May 2012.
  13. ↑ "Resale Royalty Right", U.S. Copyright Office (last visited October 24, 2012).
  14. ↑ Pallante, Maria (2013). Resale Royalties: An Updated Analysis (PDF). Office of the Register of Copyrights. pp. 3–5. Retrieved 2015-03-07.
  15. ↑ Pallante 2013, p. 10.
  16. ↑ Cohen, Patricia (2014-03-24). "Lobbyists Set to Fight Royalty Bill for Artists". New York Times.
  17. ↑ "S.2045 - American Royalties Too Act of 2014". Congress.gov. 26 February 2014. Retrieved 2015-03-07.
  18. ↑ Svachula, Amanda (2018-07-11). "California Tried to Give Artists a Cut. But the Judges Said No". The New York Times. ISSN   0362-4331 . Retrieved 2021-05-17.
  19. ↑ "Ending a Seven-Year Dispute, a US Court Rules That Artists Aren't Entitled to Royalties for Artworks Resold at Auction". Artnet News. 2018-07-09. Retrieved 2021-05-17.
  20. ↑ "Australasian Legal Information Institute". www.austlii.edu.au.
  21. ↑ "The Copyright Agency". Copyright Agency. Retrieved 10 April 2012.
  22. ↑ "Home". Journal of ART in SOCIETY. Retrieved 6 June 2013.
  23. ↑ "Copyright Agency - Royalty Resale". www.resaleroyalty.org.au.
  24. ↑ "Question on Notice". www.aph.gov.au.
  25. ↑ Department of Communications and the Arts (8 August 2016). "Resale Royalty Scheme". www.arts.gov.au.
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