Droit de suite

Droit de suite (French for "right to follow") is a right granted to artists or their heirs, in some jurisdictions, to receive a fee on the resale of their works of art. This should be contrasted with policies such as the American first-sale doctrine, where artists do not have the right to control or profit from subsequent sales.

History

The Angelus was sold by Millet for 1,000 francs in 1865, but just 14 years after Millet's death in 1889 it was sold by the copper merchant Secretan for 553,000 francs

According to Renaud Donnedieu de Vabres, droit de suite was created in France following the sale of Millet's 1858 painting, the Angélus, in 1889 at the Secretan sale. The owner of the painting made a huge profit from this sale, whereas the family of the artist lived in poverty. Many artists, and their families, had suffered from the war, and droit de suite was a means to remedy socially difficult situations.

Legislation

European Union

The 2001/84/EC directive mandates a somewhat uniform system of droit de suite across the European Union. This directive is controversial in the United Kingdom.

France

In France, this system is in force through article L122-8 of the Code of intellectual property. It will be reformed by article 48 of the DADVSI law, which implements directive 2001/84/EC. During discussions in the French Parliament leading to this law, it was argued that in practice, the droit de suite is only paid at auctions, and that it thus disfavors the Paris art marketplace compared to London or New York. Following DADVSI, a government regulation (through a decree) is to set degressive rates and maximal fees so that the Paris marketplace is not hindered.

United States

The California Resale Royalty Act, (Civil Code section 986), was struck down as unconstitutional on May 17, 2012 because it violated the US Constitution Interstate Commerce clause, ending a 35 year run that entitled artists to a royalty payment upon the resale of their works of art under certain circumstances. The ruling by Judge Jacqueline H. Nguyen of U.S. District Court Judge, Central District of California, is pending appeal in the 9th Circuit Court of Appeals. Judge Nguyen added:

The Court finds that the CRRA explicitly regulates applicable sales of fine art occurring wholly outside California [emphasis added]. Under its clear terms, the CRRA regulates transactions occurring anywhere in the United States, so long as the seller resides in California. Even the artist---the intended beneficiary of the CRRA---does not have to be a citizen of, or reside in, California....Therefore, the CRRA violates the Commerce Clause of the United States Constitution.

The droit de suite was first proposed in Europe around 1893, in response to a decrease in the importance of the salon, the end of the private patron, and to champion the cause of the “starving artist.” California’s droite de suite statute, the California Resale Royalty Act, was enacted in 1976, and was struck down on May 17, 2012, pending appeal. The law applied to all works of fine art resold in California, or resold anywhere by a California resident, for a gross sale of $1000 or more. It had mandated a five percent royalty on the resale price of any work of fine art. An artist was able to waive this right “by a contract in writing providing for an amount in excess of five percent of the amount of such sale.”

At least one scholar has proposed that this law is unconstitutional in that it effects a Fifth Amendment taking of private property.

In September 2012, the U.S. Copyright Office published a "Notice of Inquiry" regarding establishing an artist "resale royalty right" in the US. The comment submission window is open through November 5, 2012.

Australia

Australia The Resale Royalty Right for Visual Artists Act 2009 gives the creator of an artwork the right to receive a royalty when their work is resold on the commercial art market. For artworks already in existence at 9 June 2010, the royalty applies only to the second and subsequent resales after that date. Under clauses 22 and 23 of the act artists have a case by case right to instruct the appointed government agency the Copyright Agency Ltd, to not collect and/or make their own individual collection arrangements.

The royalty is calculated as 5% of the sale price, but does not apply where that price is less than $1,000. It is payable, via an official collecting agency, to the creator on resales made during their lifetime and to their heirs for resales made up to 70 years after the creator’s death. The primary legal obligation to pay the royalty rests on the seller. However, in economic terms, it may effectively be passed on to the purchaser.

Eligible artworks include original works of graphic or plastic art, including pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware, photographs, fine art textiles, installations, fine art jewellery, artists’ books, carvings and multi-media artworks.

The royalty is restricted to Australian citizens or residents, though there is provision for reciprocal rights to be extended in the future to persons resident in other jurisdictions with compatible royalty schemes.

The introduction of the scheme was controversial, as it has been elsewhere. During the first 20 months of its operation, royalty payments totaling $530,000 were made to about 350 artists, with about 60% going to Indigenous artists. To date the Australian government has committed a total of 2.25 million to subsidize the operation of the scheme. The highest individual royalty was A$40,000 this payment (as permitted under clauses 22 and 23 of the act) was paid directly by the vendor to the artist. Most recipients have received amounts ranging from A$50 to A$300.

In January 2013 Senator Gary Humphries (Liberal, Australian Capital Territory) placed questions on parliamentary notice seeking details of the operations of Australia's Artist Resale Royalty to date . In late February of 2013 the department of the Arts supplied answers to senator Humphries questions, http://www.aph.gov.au/qon/question?number=2677. The Australian Governments answers show that of the approximately 5,000 individual royalty payments to Dec 2012, 2000 were of an average value of $55 AU, the next approximately 2,400 payments were of an average value of $162 AU and the top 600 individual payments were of an average value of $500 AU. The answers also give the average transaction cost as $30 AU, the collection fee on a $55 dollar royalty payment is $5.50 AU just one sixth of the average transaction cost of the scheme. ````

The Act failed the Australian Governments Office of Best Practice regulatory impact test "“In 2008-09, DEWHA was assessed as non-compliant for the Resale Royalty Right for Visual Artists Act 2009 and a post-implementation review is required to commence within one to two years of implementation.” to date (June 28, 2012) the act is still not compliant. The act includes a sunset clause and its long term future is uncertain.

Philippines

The Intellectual Property Code of the Philippines (Republic Act 8293) gives the author/artist or his heirs a 5-percent share in the gross proceeds of the sale or lease of the original painting, sculpture, or manuscript, subsequent to its first disposition by the creator. This right exists during the lifetime of the author or artist and fifty years after his/her death.

See also

• California Resale Royalties Act
• First-sale doctrine

External links

• United Kingdom: controversy
  • "Artists' Resale Right (Droit de Suite) Directive". UK Patent Office. Archived from the original on 2006-05-19.
  • "profile droit de suite". Caslon Analytics. 2010. {{cite web}}: Unknown parameter |month= ignored (help)
  • "Artists Resale Rights". Law Clinic. Archived from the original on 2007-09-28.
  • "Artists Resale Right". Artquest. Retrieved 2011-11-03.
  • "EU levy 'will hand much of Britain's booming art market to the US'". The Daily Telegraph. 2005-02-15. Archived from the original on 2007-03-11.
  • The Guardian
    • Ian Black (2000-02-16). "Britain gives up the fight against European art sale tax". The Guardian. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
    • Max Hastings (2005-01-03). "Art failure". The Guardian.

• • Iphotocentral.com
    • "London Auctions Implement Droit de Suite". iPhotoCentral. 2006-04-04.
    • "U.K. Caves into Droit de Suite Endangering London Contemporary Art Market". iPhotoCentral. 2006-01-08.
    • "Europe Prepares for New Charges on Art and Photography Sales, as Droit de Suite Directive Goes into Effect". iPhotoCentral. 2006-11-30.
• France
  • "Code de la propriété intellectuelle" (in French). Légifrance. 2009-08-29. {{cite web}}: Unknown parameter |trans_title= ignored (|trans-title= suggested) (help)