Artist’s Resale Right

Background

In the early 20th century a new right was created in France known as the droit de suit (lit. “right to follow”). This was designed to ensure that an artist receive some form of royalty from the resale of their work. This contrasts with the American notion of the first-sale doctrine. In practice, this only applied to works of art acquired at auctions and resulted in major art trades being made in places without an equivalent right, such as London.

After much debate, the notion of a resale right was put into European law by a directive “on the resale right for the benefit of the author of an original work of art”.1 This was implemented into UK law via the Artist’s Resale Right Regulations 2003.2

The Regulations

These regulations create a resale right for the author of a copyrighted work which entitles them to “a royalty on any sale of [their] work which is a resale”3 or resale royalty. This right lasts as long as the copyright does. Fortunately, there are considerable restrictions both on what sort of works are covered, and what sales.

In particular, it only applies to works “of graphic or plastic art”4 and supplies a list of possible examples. Similarly, the work must [either be the original work of the artist, or] “one of a limited number”5 [of copies authorised by them.  It] and so does not apply to digital content, nor anything mass-produced [Updated: see comments for more detail]. However, there are several other, important differences between the resale right and normal copyright.

Unlike other elements of copyright, the resale right is not assignable6 to others (apart from via succession). Furthermore, it cannot be waived nor can any agreement to repay the royalty be made.7

Note: This contrasts with copyright for which the economic rights can be assigned to others (for example sold or signed away) and both the economic and moral rights can be waived. This makes the resale right significantly different.

There are also restrictions on what counts as a “resale”. It only covers a transaction where at least one party involved is acting “in the course of a business of dealing in works of art” and the sale price is over €1,000.8 Furthermore, if the seller acquired the work of art less than three years earlier directly from the artist and the price is less than €10,000, there is no resale right.9

Another significant variation from copyright is that the resale royalty cannot be collected by the artist themself. The right may only be exercised by a collecting society10 which must have managing royalties as one of its main functions and must be paid for it. In addition, if the artist has not appointed a collection society to manage their royalties, the appropriate society must assume control.11

The remainder of the regulations cover provisions such as collective management, rights to information and specifics on when and how the regulations come into force. In particular, the resale right does not apply to any sales before the regulations were made, but does apply to any future sales of works previously created or first sold.

The Schedules

There are two schedules at the end of the regulations, the first of which describes how much the resale royalty is, starting at 4% for sale prices of €50,000 or less, down to 0.25% for those exceeding €500,000. However, there is an absolute cap of €12,500. The second schedule lists countries (in addition to those within the European Economic Area) whose nationals have a resale right.

Note: There are certain major countries that are not included in the list, including many prominent North American, Asian and Australasian countries. The full list can be found here.

3 – R. 3(1), Artist’s Resale Right Regulations 2003

4 – R. 4(1)

5 – R. 4(2)

6 – R. 7(1)7- R. 88 – R. 12(3)

9 – R. 12(4)

10 – R. 14(1)

11 – R. 14(2)

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4 Responses to “Artist’s Resale Right”

  1. Robbie Schiffelbein Says:

    Hi, just ran into this website from reddit. It’s not an article I would regularly read, but I loved your perspective on it. Thanks for creating an article worth reading!

  2. Howard Fisher Says:

    I am currently studying IPR law as part of my masters and am very interested in your article. If digital work is not covered under ARR does that mean that the work of many video (digital these days I presume) and New Media artists have no protection?

    • Duke Says:

      I may have been completely wrong when I said it didn’t apply to digital content. A work of art is defined to include:

      “works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs”

      Applying the principle of ejusdem generies, anything similar to those will be covered. In principle, I don’t see (on this basis) why a video wouldn’t be protected, nor a work just because it was digital.

      Where there might be an issue is that the work must be “original” or one of a limited number of copies of an original work, made by the artist or under their authority. There seems to be very little case law on this, and no real definition of “limited”. I think when I first read this I was thinking digital in terms of stuff that had been mass-reproduced, but even then, the original work would be protected.

      Where there is an issue, though, is as to the distinction between the information and the work (for example, between a song, and the encoding of that song on a CD, or piece of paper). This is something that law does very badly, as the people writing the laws had no idea this could become an issue.

      From the limited case law available, you cannot sell information (so a video or digital picture) because it isn’t property; as such, the resale right can’t be engaged. However, if that information was stored on a CD/DVD, and the DVD was sold, it would be – because the “property” is the disc, not the art. While you might have an argument convincing someone that the disc was an original work of art, I think the case law would be on your side.

      At this point, I think my knowledge of the art world is failing me – I don’t know how video and New Media artists operate, what they produce and what they sell, or how much it might be worth. It’s also worth remembering that it only applies to auctions, and only applies to things sold for more than €1,000 (about £870 today).

      • Howard Fisher Says:

        Interesting that these definitions and conditions of sale relate more to a system in place last century rather than one that exists today. Also that ‘Art’ is grouped together with antiques under current creative industries definitions. Less about the art and more about the market?


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