The Artists’ Campaign for Droit de Suite
On 17 May 1993 a unique and important meeting was held to give artists the chance to hear about droit de suite (the visual artist’s resale royalty right) and form their own views as to its importance (see AM 166 p34).
Organised by ‘The Artists’ Campaign for Droit de Suite’, a new body established to call for UK law on droit de suite, the meeting was held at the Royal Society of British Sculptors in London.
Droit de suite (or resale right) is a legal right. It allows visual artists to claim a small percentage of the re-sale price of their works. Some artists, such as writers and musicians, already earn a share of the profits made each time their work is sold through royalty payments. But there is an important difference between these artists and most visual artists. Writers and musicians earn royalties each time a reproduction of their work is purchased (or played). Visual artists generally earn their living through the sale of one-off originals of their work, not copies. The reasoning behind droit de suite is simple. Artistic works are often resold at far higher prices than that originally paid by the first buyer to the artist. A painting might be bought from an artist for, say, £400 and sold some years later for £2,000 yet the artist who actually made the work does not benefit financially from the resale. The seller will earn £1,600 and the artist will earn nothing which, say many artists, is unfair.
Increases in the market price of an artist’s work are often due to the loner term enhancement of the artist’s reputation in the market place. This itself is partly due to the skill and labour of the artist over many years of work; however, artists rarely benefit from increases in the market value of their works. Droit de suite legislation would change and allow artists to claim their just economic rewards by allowing visual artists and heirs the right to a small percentage of the resale price of the artist’s work. Artists first campaigned for resale rights in the 1920s in France when they used a motif of two children dressed in rags standing before a gallery window and saying ‘Look – one of Daddy’s paintings’. Since that time droit de suite legislation has been introduced in over 20 countries, including many in the European Community.
The Berne Convention
The International Copyright Convention held at Berne in 1948 was signed by many countries, including the United Kingdom. The signatory nations agreed to introduce a droit de suite law into their own national legislations.
The European Community
The European Commission has always been concerned about legislation which distorts economic competition and hinders free trade between member states. The Commission has been and is interested in European Community legislation on droit de suite. It is difficult to prove, but common sense dictates that a European-based seller of artwork, given the choice, will not choose to sell in countries in which a resale royalty would be levied on the sale and that these countries thus have an unfair advantage in the international art market. Fear among art dealers in the UK that the introduction of droit de suite in the UK would depress our art market may be one reason why it has not yet been introduced, despite our acceptance of the Berne Convention.
The UK Re-sale Royalty Right
In 1977 the Whitford Committee on Copyright Law reported to the then government on re-sale royalty rights. It recommended that, were re-sale royalty rights to be introduced in the UK, the right should:
- be given to artists – who would administer it themselves
- not be inalienable – i.e. artists should be able to sell or license it to other people, as with copyright
- last for the artist’s life plus 50 years, like copyright
- apply to all artistic works
- apply only to sales where a profit in excess of inflation is made.
Having started with a clear analysis of the need to make economic provision for artists it then looked at foreign droit de suite schemes and said that ‘droit de suite is just not practical either from the point of view of administration or as a source of income to individual artists and their heirs’. The Whitford Committee said only a few artists actually benefited from droit de suite and artists, when left to establish their own collection agencies, had been reluctant to do so. For these and other reasons the Committee did not recommend the introduction of droit de suite in the UK.
The artworld has changed since 1977 and, even if possible problems of administration were once a valid argument against droit de suite, these problems no longer exist. DACS (the Design and Artists Copyright Society) has been in place since the 1980s; every year it collects thousands of pounds in copyright royalties for its members (artists and designers in the UK) from the use, and abuse, of their copyright works in the UK and abroad. DACS has the competence and experience to administer the re-sale royalty right in the UK and is willing and able do so.
Re-sale Rights in Action
Notwithstanding the fears of the Whitford Committee, droit de suite legislation does work. Here’s how it works in some countries:
France was the first country to introduce droit de suite in 1920. Artworks which attract droit de suite include graphic and plastic arts and additionally tapestries, sculptures and prints, but only if they cost at least FFr10,000 (about £1,000) and only if they are sold at public auction. The percentage of the re-sale price which the artist recovers varies between 1% and 3%. SPADEM and ADAGP jointly administer the droit de suite royalties. In 1985 these artists’ collecting societies jointly received FFr5.7m from droit de suite royalties. The right benefited a wide number of artists and not just the successful few. About a quarter of ADAGP’s 4,500 artist members received re-sale royalties with the average income from the royalties being FFr10,000.
Germany introduced re-sale rights in 1965. Royalties are charged at 5% of the re-sale price of all sales of works sold for DM100 (about £35) or more (by specific arrangement some dealers pay 1% on all works created since Jan 1 1900). German law also, importantly, provides for artiste and their successors to have a right to information from art sellers about the sale of their works. This right can only be asserted by the collecting society acting on behalf of the artist. In 1985, UG Bild-Kunst, the German collecting society, collected DM1.1m in re-sale royalties. Only 60% of the royalties was paid to the artists, but the royalties collected also go towards a social fund for artists in need and towards Kunst Forum, a cultural institution.
Belgium provides for re-sale royalties of 2% on art works sold by auction houses, art dealers and private individuals. They are collected by SOFAM.
California is the only state of the USA to have droit de suite. The royalty is 5% on artworks sold for $1,000 or more, but cannot be claimed on works which are resold for less than the purchase price. There are complicated provisions as to who qualifies to claim a royalty – the artist must be a US citizen or a Californian resident and the sale must take place in California or involve a seller who is a Californian resident.
Effects of Droit de Suite in the UK
The introduction of droit de suite into the UK would at least have the following effects:
- British artists whose works were resold in the UK would be entitled to royalty
- British artists whose works were resold abroad in a country which had resale rights would probably be entitled to receive a royalty for that foreign country – currently UK artists are denied the right to collect royalties from these countries simply because foreign artists cannot collect their royalties in the UK
- foreign artists would be able to claim a royalty in the UK.
The time is now right for droit de suite legislation in the UK. The administrative hurdles have been overcome, droit de suite is working well in many nations. Denmark introduced droit de suite in 1990; Spain introduced it in 1992. Ever greater economic harmonisation between European nations calls for the UK to come into line on droit de suite and honour the Berne Convention. For all these reasons the introduction of droit de suite is supported by the Royal Society of Painters and Printmakers, the Society of Wood Engravers, DACS and Artists Newsletter. Artlaw too supports the introduction of droit de suite.
For more information contact The Artists’ Campaign for Droit de Suite 0403 752269.
The Artlaw Team is Henry Lydiate and Nathalia Berkowitz, barristers with a special interest in the law relating to the visual arts.
Visual Arts and Crafts Guide to the new laws of Copyright and Moral Rights: The Artlaw Handbook to the laws of copyright and moral rights is now available. £6.00
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© Henry Lydiate 1994