Part One: The Artist Resale Right
Over the next year, I have decided to pen a series of articles on a topic that remains very near and dear to me—artist rights and advocacy for visual artists. During my time at Sotheby’s Institute of Art in London a few years ago, I authored Resolving the Starving Artist Cliché —a guide on implementing international schemes into Canada to assist access to justice for artists and poverty alleviation. According to a 2001 study “Artists in Canada” by Hill Strategies, artists earned nearly half of the average Canadian labour force. Thus, it is critical for various schemes to be implemented in order to assist artists economically and socially. The first of said initiatives I will explore is Droit de Suite or the Artist Resale Right (ARR).
Originating in France, ARR gives artists and their estates the opportunity to have a residual income on works of art when resold. As defined by Renée Pfister in Understanding International Art Markets and Management, “droit de suite constitutes the right of visual artists to a percentage share of the earnings from the resale of their works of art on the art market.” Of note, droit de suite can only be on sales on the secondary market between buyer and seller or intermediary, and are excluded from the first transaction, private sales, and works bought and sold within three years. Some believe the scheme was brought into legislation following the resale of Jean-François Millet’s work after his death for FF 1,000,000, whose works sold for FF 1,200 during his lifetime while his family lived in abject poverty. Others believe it to be the result of the collapse of the French Salon and therefore lack of state funding.
Following droit de suite being codified in France, the Berne Convention 1948 wrote Article 14bis, allowing Member States to observe droit de suite. Over fifty years later, the European Commission created Directive 2001/84EC that outlines droit de suite within Europe and applies only to works created by artists who are nationals of the European economic area. The Directive recommends 4% of the sale price to be given back to the artist (for sales under 50,000 euros), with royalty not exceeding 12,500 euros and instigates a harmonization within Europe. Member States were given until 1 January 2006 to impose a royalty right into their legislation, thus to ensure artists being able to benefit from resale right on a reciprocal basis throughout the European Union. Notably, the United Kingdom (UK) mandated droit de suite under the UK Resale Right Regulations 2006.
Although many arts business professionals were concerned about the resale right harming business and driving auctions to be held in Geneva or New York (where no resale right exists), the UK art market has continued to excel with buyers reacting positively to giving a percentage back to the artist. As maintained by Joanna Cave, chief executive of the UK’s Design and Copyright Society, droit de suite not only rewards artists financially, but also “serves to remind art market professionals, buyers and sellers, who created the art in the first place.”
ARR also functions in other areas of the world. Australia implemented the Resale Royalty Right for Visual Artists 2009 in which 5% of sale price for artworks over $1000 AUD would be given a resale royalty. It has totalled to more than $970,000 AUD and has aided over 490 artists, with 60% being from Aboriginal communities. Throughout the world, droit de suite usually lasts for the same length of time as copyright, with the collecting agency being most commonly a copyright collecting agency. In the United States (US), California was the only state where droit de suite applied under the California Resale Royalty Act (1977). However, in May 2012, the scheme was struck down as being “unconstitutional” due to it infringing upon commerce clauses within the US Constitution.
Currently in Canada, there is no legislation implementing ARR. However, movements have been made to change legislation and include Artist Resale Right into the Canadian Copyright Act through amending the Act with Bill C-32. The primary organizations spearheading the project are Canadian Artists Representation Le Front des Artistes Canadiens (CARFAC) and Regroupement des artistes en arts visuels du Québec (RAAV). In 2010, CARFAC published Recommendations for Artist Resale Right in Canada. Briefly, the report mentions Canada’s place as a signatory to the Berne Convention and alludes to the importance of ARR for particular communities including aboriginal and senior artists. In 2012, CARFAC attempted to pass a private members bill rather than amending the Copyright Act, as they previously hoped to do. Additionally, CARFAC proposes that the ARR be at a flat 5% rate for all paintings sold above $1000 (CAN) with CARFAC acting as the collecting agency.
In my view, the implementation of artist resale right would benefit Canadian artists on a global scale as well as international artists within Canada. Acclaimed Canadian artists such as Jeff Wall are achieving high prices at auction internationally in countries where artist resale right is a running scheme. In adopting artist resale right, a dialogue can be opened between Canada and artist resale right countries through this reciprocal ARR scheme. However, many art business professionals, including David Silcox of Sotheby’s Canada and Stephen Ranger of Waddingtons, are concerned that ARR will hinder their revenue and dissuade buyers to purchase from the secondary market. In a 2012 interview, Ranger noted: “I think that they [CARFAC] are not fully aware of the economics of the art business and the fragility of the contemporary art business, especially where it relates to the secondary market.” Ranger believes that more dialogue is required between CARFAC and art businesses to ensure that the scheme is implemented correctly because “they haven’t found a really good way that makes me confident that it will be implemented well. There is still so much grey area.”
Since 2012, CARFAC and individuals including myself, have encouraged art businesses in Canada to return to the conversation of artist resale right and the important impact it would have on Canadian artists. Some have welcomed the scheme, such as Cube Gallery in Ottawa who have been paying royalties for almost ten years and Ritchies Auctioneers who adopted an ARR policy in May 2013. This is a miniscule step to achieving the successes of Europe or Australia, but it is one in the right direction. What is needed for success is awareness to be raised regarding the urgency of implementing droit de suite and to support organizations such as CARFAC and RAAV in their work to assist artists within our great country. Visit www.carfac.ca to find more information on the status of artist resale right in Canada.