ARTS & CULTURE
12 Obiter Dicta
Resolving the Starving Artist Cliché
Part One: The Artist Resale Right
kathleen killin › arts & culture editor
O
v er 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,
ê Published on the front page of a Parisian newspaper in 1920, this drawing by Jean-Louis Forain shows the young
child of Jean-François Millet outside the auction house begging while her father’s work sold for high prices. Courtesy of Artists Space, a Manhattan based group at www.artistsspace.org.
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
» see artist resale, page 21
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