Droit de suite: Forgotten Corner of the Copyright Canvas

Posted on January 16, 2012 by Bob Tarantino

The good folks at the Lawyers Weekly have published a short commentary of mine on the introduction in Canada of a droit de suite (or resale right) for visual artists.  The article can be found in its entirety here, and here is a brief excerpt:

In an age when the challenges of digital technology dominate copyright reform discussions, the world of auctioneers and brushstrokes may seem quaint. But there is an issue among Canadian visual artists that is just as crucial as digital downloads: The lack of a droit de suite, entitling artists to a share of revenues when their art is sold, leaves Canada out of step with many peer countries.

A droit de suite entitlement may at first appear to be not even a copyright issue, since no “copying” is involved in a sale of art. However, s. 3(1)(g) of the Copyright Act already takes special account of works of visual art by granting artists the exclusive right to control public exhibition of their works, which also does not entail making any copies.

There have been a few recent discussions at other forums about droit de suite / resale rights in other jurisdictions which I thought worth highlighting:

For previous Signal discussion on the droit de suite, see here.

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Visual Artist's Resale Right / Droit de Suite in Canada

Posted on January 6, 2011 by Bob Tarantino

Following up on an earlier Signal post (Visual Artist's Resale Right / Droit de Suite in Canada), the 1709 Blog has posted two additional items on the topic which are worth attention:

Oddly enough, the discussions in Canada about introducing an artist's resale right even prompted commentary on the matter from Peter Worthington, writing in the Toronto Sun: This artist doesn't want 'greedy' handout.  The Liberal Party of Canada also included the introduction of a resale right as one of their highlighted copyright reform proposals.

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Visual Artist's Resale Right / Droit de Suite in Canada

Posted on November 3, 2010 by Bob Tarantino

The Globe and Mail last weekend ran an interesting article by Kate Taylor: Visual artists seek a percentage of resale riches (hat tip: Stikes).  As the article notes:

In 59 ... countries including most of Europe, [painter Mary] Pratt would get a small percentage (from a fraction of one per cent to five per cent, depending on the sale price) of the hammer price of her resold painting thanks to a principle known as “droit de suite,” or the artist’s resale right.

The right, which has existed in France for decades but was only introduced to the U.K. in 2006, means that an artist, who has previously sold works for low prices, can profit from rising prices on subsequent sales of those pieces. The law applies after death too, so that an artist’s heirs would get a share until copyright expires, 75 years after death in most of these countries.

“The whole value of an art work is not made on the original sale,” said April Britski, national executive director of the Canadian Arts Representation (CARFAC). “Visual artists are at a great disadvantage compared to writers or musicians who keep getting money from recordings or books. [With art,] you sell it once and it’s gone.” Britski said the right would be particularly valuable to older artists and to Canada’s aboriginal artists, who may sell works for much less than urban collectors eventually pay for them. Australia has just adopted the right specifically to address the exploitation of its aboriginal artists.

CARFAC has published information regarding the resale right (see their brief backgrounder and detailed Recommendations).  Also worth reading are this very detailed treatment of the Australian resale regime (along with some international comparisons) prepared by Caslon Analytics, Mara Grumbo's "Accepting Droit de Site as an Equal and Fair Measure under Intellectual Property Law and Contemplation of Its Implementation in the United States Post Passage of the EU Directive" 30 Hastings Comm. & Ent. L.J. 357 (2007-2008) and the California Arts Council's online resources about the California Resale Royalty Act.

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