The Right to Resale Royalty Picks Up Steam
The Copyright Office published a request in the Federal Register requesting comments about an artist’s right of resale royalty. This request parallels a bill introduced in Congress to make the right part of the federal copyright law. The right of resale is the right for an artist or his or her heirs to collect a portion of the final price of resale to compensate them from the subsequent owners that resell the artists’ work years later. The right protects starving artists who are forced to sell their creations of fine art to private collectors, galleries, and private auction houses that can afford to wait while the artist gains recognition and acclaim.
Undoubtedly, the buyers risk their money, add cache to the artist from the investment, and value to the original work. However, once the work has passed from the hands of the artist, the artist receives no further compensation. This is problematic in the plastic arts where works of genius are not always recognized in their time. In effect, without the right of resale royalties, the artist is punished for creating art. Without the right, artists are discouraged from leading the vanguard of art because society does not immediately recognize the true value of the artist who explores new metaphysical expression.
The right to resale protects the plastic arts (paintings and sculpture) because of the unique qualities of the art. The value that fine arts provide to their creators is limited. From the nature of plastic arts, derivative rights for paintings and sculpture do not exist. For example, selling the movie rights to Hopper’s Automat is much more difficult than for Tom Wolf’s Bonfire of the Vanities. Also, unlike music, no value is rendered from performance of the work and the work is difficult to incorporate in other mediums. The plastic arts are vulnerable because the value of their work derives from the limited quantity produced.
The request from the Copyright office is at the request of Congress and compliments the “Equity for Visual Artists Act of 2011” that would aim to make artist’s right into federal law. The bill introduced by Senator Kohl and Congressman Nadler, would harmonize U.S. law with current international norms and update copyright law with our artistic contemporaries in Europe and Latin America. Although versions of the law have existed in Europe for some time, the idea is not foreign to U.S. shores. A version of the right of resale law existed in California State law from 1976 until it was found unconstitutional in a decision handed down on May 17 in the Central District of California. Appeals are pending.