LE DROIT DE SUITE – THE RIGHT TO FOLLOW
Article written by Sharon Ndalilah Nafula on July 17, 2018
A good number of us can agree that Mother Nature is full of life. From the creatures: the human beings - us, the mythical ones - creatures of darkness, creatures of the underworld, to the plants. All, play a very big role to the beauty of the world.
It is the same theory that applies to the Art World, with the paintings, the sculptures, drawings, photographs, illustrations and so much more that is brought about with our beautiful artistic skills.
Art lovers would relate pretty well with the saying that, art is life. Personally, I’ve come across artists who describe art in amazing ways. Well, creating an artwork is quite an achievement to an artist, because truth be told, bringing to life a piece of art to the point of having it being described as a masterpiece costs a lot. It requires sacrifice, energy and effort, not just coming up with an idea, a thought or imagination, and putting it to practise, but a lot more.
And this brings about an artist, who’s proud of his/her work.
You can use art to benefit yourself in a number of ways. One, you can use art as therapy – heal that broken soul or get rid of mental stress. You could entertain yourself with art. You could also make a living out of art, by selling it. Many artists do this - earn a living through artwork. Now, what happens when an artist sells his/her art, but again expects to earn from its resale? How does this work? It does actually happen, in some parts of the world.
However in the US, artists who hope to get paid when their works are sold, will not be able to enjoy such benefits. This is after the Ninth Circuit of the US Appeals Court, declared that the Copyright Act does not recognize an artist’s right to resale royalties.
How did resale royalties come to existence?
In 1858 France introduced a law that requires artists to get royalties (payments) when their art is resold. Royalties are agreed upon as a percentage of what is earned from the sale of an artwork. The said law known as droit de suite - right to follow, was brought about by the plight of the family of Jean-François Millet, a French painter. It is believed that the family was forced to live in poverty as his famous 1858 Angélus artwork resold for 800,000 gold francs.
The sixth of July 2018 had a panel of three judges in the Ninth Circuit, nullify the same law, named as the 1977 California Resale Royalties Act (CRRA) in the US. This is after an engagement of seven years, trying to define whether artists deserve the resale royalties. The heated discussion over royalties, is said to have started after an artist Robert Rauschenberg punched a collector Robert Scull, after Scull made a huge amount of profit from selling one of Rauschenberg’s works at an auction.
The judges concluded that law should be limited, whereby only works resold from January 1, 1977, to January 1, 1978, are eligible for the royalty payment. This is when the Copyright Act became effective.
Under the CRRA law, artists were expected to get five percent of the money earned from the resale of their artworks. However the law only applied to artworks that were sold in California or were sold by a California resident.
In the ruling, the judges noted that the US became a signatory to the Berne Convention (an international agreement governing copyright) in 1989, however to date, it has not adopted the droit de suite law. “In the 70s, the US considered adopting the droit de suite as part of its copyright law, but efforts made never proved successful.”
Now, unfortunately, based on this law, artists in the US can only afford to earn from their works during the first sale, any chances of getting richer from an auction resale have been crippled. On the other hand, those selling artist’s works as resales, would make quite a good sum of money if the sale is good. Is this a win lose kind of situation? Maybe, maybe not but that is the current situation that artists in the US have to face.