The Artist's Resale Right

Author:Ms Shirine Tiwari
Profession:Charles Russell LLP

The EC has passed a directive to give artists a royalty, calculated as a percentage of the sale price, each time their work is sold. The droit de suite, or artist's resale right, is an attempt to put artists on an equal footing with other authors of copyright works such as writers, composers and performers by ensuring they receive a royalty on sales of their work.

The droit de suite is not a new concept. The Berne Convention for the Protection of Literary and Artistic Works directs that authors of original works of art should benefit from a droit de suite. It has been an essential element of France's intellectual property law since 1920 and it exists in the laws of 11 Member States of the EU.

Many artists live on or below the poverty line today. Van Gogh famously sold only one painting in his lifetime and lived impoverished, while his paintings sell for millions of pounds today. The droit de suite will give artists during their lifetime, and their successors for seventy years after the artist's death, the right to receive a royalty on the sale price of their works and the opportunity to share in the appreciation of the value of their works as a result of the artist's continuing success.

It will apply to all acts of resale subsequent to the first sale by the artist, involving as sellers, buyers or intermediaries art market professionals such as salesrooms, art galleries and, in general, any dealers in works of art. Member States may provide an exception from the droit de suite for acts of resale where the seller has acquired the work directly from the artist less than 3 years before the resale and where the resale price does not exceed EUR 10,000 (about £6,215). It applies to "original" works of art that are protected by law of copyright on 1 January 2006. The droit de suite will therefore only apply to sales of modern art.

Original works of art are defined as "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs" that are made by the artist himself or are copies of works of art which have been made in limited numbers by the artist himself or under his authority.

The droit de suite is unassignable and inalienable. It cannot be transferred, sold or waived. This protects artists from the vulnerable position that many writers and performers find themselves in when a publisher or production company demands that they assign...

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