You may have heard about it from a friend, read it in the papers, or seen it on a website. Perhaps you’ve never even heard about it. But Artist’s Resale Right (droit de suite) has been one of this year’s hotly debated issues amongst UK’s artists and art trade. It’s also been the subject of a select committee inquiry and government consultation.
With an arrival date set for 1 January 2006, time is running out to learn about the concept invented by the French back in the 1920s. Following the death of the great French painter, Jean François Millet, the value of his paintings rose dramatically with a painting changing hands for 1 million francs which he had previously sold during his lifetime for 1,200 francs, whilst his family was left destitute.
The French law of droit de suite that followed was an attempt to redress this inequality by providing artists with an on-going stake in the commercial value of work. Furthermore, the French law extended this right to the heirs of an artist who may be left without income after the death of a spouse and/or parent while art collectors and dealers made vast profits.
These principles remain at the core of Artist’s Resale Right, but the new legislation also includes for the first time a specific attempt to encourage young, newly emerging and less well-known artists.
What is Artist’s Resale Right?
Artist’s Resale Right (droit de suite) is arguably the most important new right for artists in modern copyright history.
It entitles visual creators, whose work is protected by copyright, to a percentage share of the sale price every time their work is resold by a gallery, dealer or auction house. Artists will earn royalties from the resale of their work and share in its commercial success and increasing value.
The Right will be introduced into the UK for the first time on 1 January 2006.
When will the Right apply?
When will the Right NOT apply?
How does it work?
The royalty is calculated on a sliding scale. The minimum value of the resale, for when the resale royalty can be applied, is currently set at €3,000. DACS is seeking a threshold of €1,000 in order to benefit groups of visual creators whose work does not usually command high prices, such as photographers, illustrators and craftsmakers.
The rates of the royalty range from 4% for the portion of the sale price up to €50,000 to 0.25% for the portion of the sale price exceeding €500,000. The royalty is capped at €12,500 which is achieved when a work sells for €2 million or more.
Portion of the sale price………………………..Percentage amount
From 0 to 50,000 euro………………………………………4%
From 50,000.01 to 200,000 euro………………………….3%
From 200,000.01 to 350,000 euro………………………..1%
From 350,000.01 to 500,000 euro………………………..0.5%
Exceeding 500,000 euro…………………………………….0.25%
How does the artist receive their money?
There are two options currently being debated for administering this new Right.
1) The artist (or their representative) collects the royalty.
This ‘voluntary’ management option leaves it up to the artist, or their representative, to keep track of when their works are resold. They will be required to approach the seller or art market professional directly for information and payment of the royalty.
The artist, or their representative, is entitled by law to request certain information from those liable to pay the royalty (either the art market professional or the seller), including the amount of the royalty that is due and the name and address of the person who is paying that royalty.
Many artists see problems with this system. How will they know when their works have resold in the UK, let alone in countries across Europe? How will they know who to approach for their royalty?
2) A collecting society who collects and distributes the royalty to artists.
This ‘compulsory’ management option requires the art market professional to pay the royalty to a collecting society who then distributes the money to the specific artist. The same right to obtain information about the sale applies to this society.
Despite this option removing the choice from the artist, many artists are in favour of this system. They recognise that a larger organisation will have more power to trace sales and demand payment from those liable. The legislation does not aim to create a monopoly for any one collecting society as it allows more than one to collect the royalty.
How will this benefit artists?
Artists are among the lowest earners in the UK and the last census recorded that more than 50% were unable to earn a living from their art. Artist’s Resale Right will help artists earn a living and finally puts them on a level playing field with composers and writers, who have long enjoyed similar rights. This law also creates equality for UK artists with their continental peers.
The ability of artists to earn royalties will stimulate creativity. DACS distributed over £3 million in rights income to artists in 2004; the amounts ranged from a few pounds to several thousand pounds per artist. Our experience tells us that even modest income from this source helps artists to earn a living so that they can continue making art.
Artist’s Resale Right is also an inalienable right. Artists can not be pressured to waive or assign the Right.
The debate against Artist’s Resale Right
The debate surrounding Artist’s Resale Right has been very heated and the major auction houses are strongly resisting the introduction of the Right. They claim the Right will damage the UK art trade by driving sales away from the UK to places like Zurich and New York where the Right does not apply.
Despite these vociferous arguments there has been no evidence to suggest this will be the case. With the royalty capped at €12,500 there is little chance that sales will be driven overseas. In reality, evidence suggests the Right will have less effect on the art trade than VAT, or the buyer’s premiums introduced by the auction houses.
Claims have also been made that the Right benefits mostly already wealthy artists. In response to this, DACS has been campaigning for a lower threshold to ensure that more living artists will benefit. However, it is important to recognise that levels of royalty earnings throughout the creative industries reflect popularity – look at Elvis, Paul McCartney, J K Rowling. Artist’s Resale Right should be enjoyed by artists in a similar fashion.
How will ARR work at DACS?
The Design and Artists Copyright Society (DACS) represents 52,000 artists and their heirs – from fine artists to photographers, illustrators, craftspeople, cartoonists, architects, animators, and designers. Our members include some of the biggest names in contemporary visual arts as well as talented newcomers.
As a not-for-profit organisation we have 20 years of experience in distributing money to artists through licensing the reproduction of individual works. We also provide our successful Payback service that distributes money collected through collective licensing schemes such as for photocopying.
DACS has campaigned for the introduction of Artist’s Resale Right for 10 years and is well prepared for its introduction on 1 January 2006. We are supporting the introduction of a compulsory management system as we recognise the importance of ensuring this new royalty actually ends up in the hands of artists.
What happens next?
All UK artists will be affected by this new legislation and stand to benefit from its introduction. The Government is still deciding on a number of issues to do with this legislation and hopes to have it drafted by October. The legislation will be implemented from 1 January 2006.
It is important that artists, as well as galleries and dealers, understand more about how this Right will affect them. Pass this information on to artists you know, and for more information on DACS, and Artist’s Resale Right, check out www.dacs.org.uk or email arr@dacs.org.uk.
