An Artist's Resale Right in the US?

A new bill was introduced in the United States this week which aims to grant a resale right to artists in the US.

The bill, called the American Royalties Too Act [giving it the oh so clever abbreviation of ART Act], was introduced by US Senators Edward J. Markey (Mass.) and Tammy Baldwin (Wisc.) and Congressman Jerrold Nadler (NY).

A press release from Senator Markey explains the bill as follows:

"Under current copyright law, visual artists – painters, sculptors, and photographers – are denied the ability to fully benefit from the success of their work over time. Unlike recording artists or publishers who, if successful, sell thousands of copies of their work and recoup a royalty from each purchase, artists sell their work only once. If they are successful, the price of their work increases but they recoup nothing if their original work is resold at a much higher price. The benefits derived from the appreciation in the price of a visual artists’ work typically accrues to collectors, auction houses, and galleries, not to the artist. In addition, United States artists are at a disadvantage in the global art market where more than 70 other countries have provided resale royalty rights for visual artists. The American Royalties, Too (ART) Act of 2014 remedies this inequity by providing a modest resale royalty right for visual artists. 

The ART Act would: 

· Provide a competitive resale royalty of five percent of the sales price (up to $35,000) for any work of visual art sold at auction for $5,000 or more. 

· The resale royalty [would apply] to any auction where the entity conducting the auction has sold at least $1 million of visual art during the previous year. 

· Royalties [would be] collected by visual artists’ copyright collecting societies who [would be required to] distribute the royalties to the artists or their heirs at least four times per year. 

· Allow US artists to collect resale royalties when their works [were] sold at auction in the EU and more than 70 other countries."

The bill comes a little more than two months after the release by the US Copyright Office of its Report on Resale Royalties which concluded (among other things) that:

• The current US copyright system leaves many visual artists at a practical disadvantage in relation to other kinds of authors. 

• To alleviate the effects of this financial disparity, Congress should consider ways to rectify the problem and to further incentivize and support the development and creation of visual art.

• The Copyright Office supports the consideration of a resale royalty right as one option to address the historic imbalance in the treatment of visual artists.

• There was no evidence that adoption of a resale royalty right would cause substantial harm to the US art market.

The bill is a revised version of the Equity for Visual Artists Act which was introduced by Nadler back in 2011 but stalled in Congress. Many might wonder what is different less than three years later. Well, now there is the US Copyright Office's Report (incidentally requested by Nadler in 2012), which, given its conclusions above, might provide the support needed to get the ART Act over the line.