Article - Artist’s Resale Right arrives in the UK
Artist’s Resale Right arrives in the UK
In much of Europe and elsewhere in the World, fine artists have the benefit of a legal concept which fine artists in the United Kingdom, until now, have not: “droit de suite” or “artist’s resale right.” New legislation has now introduced this concept into English law.
Droit de suite operates so that authors of original graphic or three dimensional works of art have a right to be paid royalties from resale of their artwork. Thus, it allows original authors of works of art to recoup the benefit of increases in the value of their artwork.
Droit de Suite in the United Kingdom
Under the Berne Convention 0f 1971 for the Protection of Literary and Artistic Works, the incorporation of droit de suite into national law was optional and the United Kingdom, which has the largest fine art market in Europe, has always resisted incorporating droit de suite into its national law. Meanwhile, the majority of European Union member states have incorporated droit de suite into their respective national laws.
Conversely, writers and authors of musical works in the United Kingdom have long had resale rights. So, for example, a song-writer in the United Kingdom has a right to a percentage of the money made from sales of his song and an author of a work of fiction in the United Kingdom has a right to a percentage of the money made from sales of his book. Writers and composers in the United Kingdom are, therefore, used to getting a return on their productive efforts.
Such royalties are collected and distributed to writers and composers by royalty collection agencies such as the Authors’ Licensing and Collecting Society and Phonographic Performance Limited.
The New Law
By a 2001 Directive , the European Parliament and Council stepped in to harmonise the law amongst the member states of the European Union making droit de suite compulsory in relation to original works of art. Member states that had not already incorporated droit de suite into their national laws, such as the United Kingdom, had until 1 January 2006 to implement this directive. The Artist’s Resale Right Regulations 2005 implement the directive and these Regulations took effect from 1 January 2006.
Now authors of works of art (excluding architectural drawings or computer generated works) have a right to be paid a royalty based on the resale price of their works of art where the resale price is not less than €3,000.
Currently, this royalty is calculated as a percentage of the resale price on a sliding scale starting with 4% for a resale price of less than €50,000 up to 0.25% for a resale price exceeding €500,000 with a maximum limit on the resale royalty of €12,500.
The estates of deceased artists will not immediately benefit under the new law. The new law states that the droit de suite is transmissible to the artist’s estate on death, but an estate of a deceased artist will not be able to claim royalties under the new law for resales of the artwork occurring before 1 January 2010.
Artists should obtain legal advice on their rights under the new law and contact royalty collection agencies with regard to recovery of royalties owed to them.
Impact
The minimum resale price of €3,000 is likely to exclude many small artists from the benefit of the new law whose artwork does not sell for such figures. Furthermore, the ceiling figure of €12,500 is arguably unfair in light of the fact that there is no limit on resale prices which can be obtained by resellers of artwork.
In addition, the delay in introduction of droit de suite for a deceased artist’s estate (in most cases the artist’s family) is arguably arbitrary, since the copyright which the living artist owns in his original work is the same as that owned by his family after his death. Copyright in the United Kingdom continues to exist in original works during the life of the author and for a period of 70 years after the death of the author.
Nevertheless, it is likely that the new law will be welcomed by authors of original artwork as a step in the right direction. Whereas previously artists who sold their artwork for relatively small sums were not entitled to a single penny of later sales for much larger sums, now the artist is able to share, to a small extent, in the commercial success of his artwork.
Silas Brown, Solicitor
Technology & Creative Arts Group
Foot Anstey Solicitors
silas.brown@foot-ansteys.co.uk
Published 06/12/2005.
