The United States Copyright Office solicited public comment last year on possible droite de suite, or resale royalty legislation. As addressed previously, state law attempts to regulate artists’ rights to resale royalties have been struck down as unconstitutional. Among the issues that the Copyright Office grappled with is the basic question of incentive: if a copyright royalty were paid on sales subsequent to the first sale, what effect does that have on the economic incentive to create art? Who benefits? Who is harmed?
59 comments were received, which were posted on the Copyright Office’s website. Those in favor of resale royalty legislation included the American Photographic Artist, Inc. and the Artists Rights Society. An interestingly high number of German artists’-related associations weighed in, including the Internationale Gesellschaft der Bildenen Künste.
Those opposed included the Association of Art Museum Directors, who after stating that “[m]useums have an interest in ensuring that all living artists, whether at the beginning of their careers or already well established, are fairly compensated and rewarded for their artistic endeavors,” argued that the AAMD was “concerned that the royalty, contrary to its intended purpose, may actually undermine the economic position of many living artists, especially artists at the start of their careers. As a matter of economics, if a buyer knows that he or she has to pay a share of any profits from later sales, then the buyer is likely to pay less in the initial transaction.” Likewise, eBay (a defendant in the California case) opposes new legislation.
Others took a more agnostic view. The New York University Art Law Society was “of the view that without more significant research into current markets and behaviors of artists, auction houses, galleries and other participants in art transactions, it is impossible to predict whether the proposed resale royalty would effectively and efficiently incentivize artistic creation.”
The Copyright Office held a public hearing on April 23, 2013 “to discuss issues relating to the consideration of a federal resale royalty right in the United States.” I have not found any accounts of the hearing. No word yet either on when to expect action, if any.
