Backhanding Artists’ Rights

A for-profit corporation proposes profit increasing legislation under the guise of artists rights:

The Art Newspaper reports that a corporation known primarily for its copyright licensing business is lobbying Congress in support of Federal legislation that would create art resale royalties. Artists have sought a law whereby subsequent sales of a physical artwork would mandate a small royalty fee to the artist of the work.  Generally, such fees are only paid during the lifetime of the artist of the artwork.  However, this is not necessarily the goal or result of the Federal legislation now.   It is apparently proposed  under the guise of artists rights or droit de suite, but in this case, it belies the probable aim of the proposed law– the increase of corporate profits.

The lobbying effort is apparently supported by the Artists Rights Society, which despite its name is not a grassroots or artist-based rights organization.  Rather, Artists Rights Society is a for-profit company whose primary business is copyright licensing.  Artists Rights Society, Inc., (ARS) is listed on the New York Department of State website as a (for profit) business corporation.

Not to confuse the proposed law with, for example, the California resale royalties law, the ARS supported Federal legislation apparently has a drive-a-truck-through-it sized exception for galleries and dealers.  In other words, galleries and dealers would not have to pay the resale royalty to artists.

Although this author strongly supports resale royalties for artists, I particularly oppose the ARS supported legislation because it would be detrimental to most working artists and because it excludes the primary generators of potential royalties– galleries and dealers.  The ARS supported legislation is far too exclusionary and would not benefit any artists whose work is sold by a gallery or dealer.  This would likely subject only auctions and private party hand-to-hand sales to the royalty payment, the later of which are somewhat atypical and often unreported.  The legislation seems designed to primarily benefit ARS and the like, rather than average artists, and seems to be geared in part towards ARS’ side business of artist representation.  In other words, it appears that as ARS (and other such businesses) may be the true recipients of the royalty payments gained from art sales.  It certainly isn’t clear if ARS would pay the revenue to any of the (living) artists that it may represent, but it seems not.  It would be interesting to see the terms of ARS’ representation contracts.

The Art Newspaper says, quoting John Henry Merryman in part:

“The rights collecting associations, the principal lobbying force for enacting the resale right in the US and abroad, would break out the champagne and dance in the streets,” if the resale law was made legal.

Legislation that provides for a Federal resale royalty should be for the interest of the average visual artist, as real support for the progress of the arts, rather than as profit for the exclusive few and corporate business interests.  (See U.S. Constitution, Art. I. § 8 (8)).  Progress in the arts depends upon artists, not licensing companies.  I do not support this legislation and I encourage artists to not settle for a so-called rights law that does not protect or adequately recognize their interests.


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4 Responses to “Backhanding Artists’ Rights”

  1. john r walker Says:

    I am not opposed to royaltys where participation by the artist is a matter of individual choice , it may suit some. But all of the EU schemes are mandatory on artists , whether it suits their individual circumstance or not.

  2. john r walker Says:

    BTW It is important to realize that resales are, by value, in all markets intrinsically highly skewed towards the ‘high end of town’; in the UK about %49 of all the royalty money collected has been paid to just 20 individual artists.
    Resale royalties are intrinsically of no value to the ‘average’ artist , they struggle to get first sales and without lots of FIRST sales over many years, you have little chance of resales. And to the extent that these levies deter buyers from buying art, in the first place, these levies harm younger artists .

  3. john r walker Says:

    I am a successful mid career Australian artist, Resale Royalties are not a good thing for living artists who make and sell art for a living.

    The lobbyists for resale royalties worldwide are always those who would be well paid to manage their scheme and their closely intertwined artist guilds that hope to get the money collected that is ‘undeliverable’ (to the actual right holder) to redistribute to their cronies. Rent seeking, moral hazard and conflict of interest is the intrinsic to the core of the scheme.

    I ask you to read this post of ours that Professor Jeremy Philips kindly placed on his 1709 copyright blog:

    • Artifactum / Jennifer Unruh Says:

      I see your point-I’m not sure how this proposed (Federal) legislation would functionally distribute the royalties collected. However, in California, if the artist can’t be found by the seller, the money goes into a fund with a gov’t agency & the agency searches for the artist. The agency also maintains a list of the missing unpaid artists on the web. So I don’t think that resale royalties are an inherently bad thing. Rather, here in the U.S. where artists rights are quite weak, done properly, it would be a positive development. Unfortunately, this particular proposed legislation seems to be misleading.

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