US Congress lobbied over resale rights
Campaigners push for reframed federal legislation that includes exemption for private galleries
By Helen Stoilas. Market, Issue 226, July-August 2011
Published online: 04 August 2011
WASHINGTON, DC. The Artists’ Rights Society (ARS), the main copyright and licensing collecting agency in the US, is pushing for legislation that would see droit de suite, or artists’ resale rights, become federal law.
Although previous attempts to bring a royalties scheme to the US have largely failed, the new legislation will be different, said Theodore Feder, president of the ARS. Resale fees “would not be applied to galleries”, partly because they are such vocal opponents of droit de suite, “but also because auction sales are public, while gallery sales are private, so it would be difficult to track resales”.
The late Senator Edward Kennedy tried to enact the resale royalty in 1987 as part of his original draft for the Visual Artists Rights Act (Vara) but it proved so contentious that it was removed from the otherwise successful act. Now, the “person leading the charge is Bruce Lehman”, said Feder, referring to the former Commissioner of the United States Patent and Trademark Office who helped draft the original 1976 US copyright law and the 1998 Digital Millennium Copyright Act. As we went to press in June, Feder said the organisation had appointments in Washington, DC to speak with senators and congressmen, before Congress went on its month-long summer recess in August.
“The rights collecting associations, the principal lobbying force for enacting the resale right in the US and abroad, would break out the champagne and dance in the streets,” if the resale law was made legal, said John Henry Merryman, emeritus professor of art and law at Stanford Law School in California and author of Law, Ethics and the Visual Arts. “The small minority of artists whose works have a significant secondary market would get richer. The great majority of artists, who have no significant secondary market, would have fewer gallery exhibitions and decreased sales in the primary market,” he said, adding that an application of the tax to auction sales only “would be seen as unfair discrimination. [The auction houses] would certainly lobby against it.”
Dealers also oppose the measure. Lucy Mitchell-Innes, the president of the Art Dealers Association of America (ADAA), said that: “Although the ADAA and its membership is a strong supporter of artists’ rights…it has long been our belief that a droit de suite law in the US would be extremely difficult to enforce and therefore be ultimately unsuccessful. The US collector base, many of whom are very generous philanthropists…would be resistant to a resale tax.”
Others argue that the tax is inconsistent. Although some 50 countries have a resale tax, they adhere to different rules. The EU states follow a sliding scale of 4% to 0.25%, capped at €12,500. Australia allows a flat, uncapped royalty of 5%, but exempts the first resale of the work. “It will just lead collectors to resell their art in other jurisdictions,” said dealer Edward Winkleman.
Feder calls this claim “an old canard. That was also said in the 1990s, and was an argument used by the auction houses when they adopted droit de suite in the UK. Far from business fleeing…UK auctions have increased and [are now] a very vibrant market.” But the debate in Britain has reignited as the country nears the 2012 deadline when it must extend droit de suite to cover artists' heirs or estates up to 70 years after their death.
Artists who support the scheme say it is only fair for the creator of a work to get a percentage of the proceeds when it is resold, considering that the seller and the middleman get a share. “There is no other way to put it but that the artist is the low man on the totem pole,” said painter and sculptor Frank Stella, who is a vocal proponent of artists’ rights and temporary president of the International Council of Creators of Graphic, Plastic and Photographic Arts. “It seems always to be about the cost, somehow it’s going to affect the ability to do business. But the fees charged by the auction houses, for both the seller and buyer, are almost astronomical.”
The fate of droit de suite in the US may, in the end, depend more on the country’s general economic health. As politicians continue to fight over the national debt, with Congress passing a deal at the eleventh hour to raise the debt ceiling that includes trillions of dollars in spending cuts over the next decade, few may see the need for extra funds going to artists. As Merryman said: “Picasso and Warhol were billionaires. Damien Hirst’s works bring multi-million dollar prices. Where is the evidence of unfairness?”
Submit a comment
All comments are moderated. If you would like your comment to be approved, please use your real name, not a pseudonym. We ask for your email address in case we wish to contact you - it will not be
made public and we do not use it for any other purpose.
Want to write a longer comment to this article? Email firstname.lastname@example.org