Resale Royalties

I have posted in the past on artist rights laws and Droit de Suite. Droit de Suite is more of a European process but there have been more and more forays into artist rights here in the US as well.  Francine Prouxs, ISA AM, ASA sent me an interesting article on a US Copyright Office  report looking at resale royalties for the visual arts.

Click HERE to read the Resale Royalties: An Updated Analysis report (over 100 pages)

The Art Law Journal reports

Artists, such as musicians and authors, receive royalties each time their artistic works are used or sold. Hear a song on the radio and you know that its creator will receive a check for its use. That is not always true for visual artists.  How often has the astute art patron bought an artist’s early work, which they later sell for many times the price?  The artist may have a copyright in the work but not in the resale of the original. Well, that might be changing. The Copyright Office has just issued a comprehensive report, “Resale Royalties: An Updated Analysis,” which proposes legal changes to copyright laws that will allow visual artists to receive royalties every time their original work is resold.

The copyright Office proposes a change to copyright laws that will allow visual artists to receive royalties every time their original art is sold.

The copyright office solicited public comments from a variety of stakeholders and conducted independent research concluding that certain visual artists may operate under a disadvantage under copyright laws relative to authors of other types of creative works. Authors of books, films or songs sell and distribute their works in multiple copies but a visual artist’s typical works is a single item, rarely sharing in the long-term financial success of those works.

This is not a unique idea as many other countries have royalty resale laws for visual artists.  In this proposal, the estimated royalty rate would be 3-5%, which the artist would receive each time a work is sold, and would likely only apply to public auctions.

According to the report, reproduction and other such rights generate only a fraction of a typical fine artist’s income while the majority of profits on a work come from their resale. The report also references a study published in 2011, which analyzed artist wages and salaries across specific industries.  The study suggested that the median wages for fine artists (including painters, sculptors, illustrators and multimedia artists, but excluding photographers and graphic designers) was $33, 982 whereas writers and authors (such as novelists, playwrights, or script writers) received an appreciably higher wage of $44, 794. The Bureau of Labor Statistics, which also tracks wages for artists, also shows a disparity, with an average wage for fine artists of $54,000, writers and authors at $68,420 and composers receiving $53,420.

Opponents of this proposal suggest that even if one accepts the fact that copyright laws fail to accommodate for this particular problem, it is not the role of copyright law to ensure “both statutory and market parity among authors.” Other say that visual artists may make more on their initial sale than do other types of authorship, or that if there is a demand for reproductions, then those artists have the rights to license and distribute the work to the public and receive income from those sales.

However, the opponents are leaving out a crucial consideration; the increase in the value of the visual artists work is due to the later success of the artist, which Is not accounted for under current rules.  For example, a band can release their first record, which generates very little sales since they are relatively unknown.  Later, the band becomes famous generating huge sales of their new album, and with that success, sales of their initial album skyrockets as well.  The band will receive royalties for all sales of the initial record, as well as radio plays or other use of their work.  This does not happen to many visual artists whose hard work and perseverance benefits only the buyer who owns the original work.

This article only scratches the surface of all the points and suggestions made in the report.  And, this is only a proposal.  If you are a visual artist or member of the art community with an opinion on this issue, you may want to read the full report and then write or call your senator or congressman and let them know your side.

Source: Art Law Journal