Droit de suite
From The Art and Popular Culture Encyclopedia
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Droit de suite (French for "right to follow") is a right granted to artists or their heirs, in some jurisdictions, to receive a fee on the resale of their works of art. This should be contrasted with policies such as the American first-sale doctrine, where artists do not have the right to control or profit from subsequent sales.
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History
According to Renaud Donnedieu de Vabres, droit de suite was created in France following the sale of Millet's famous 1858 painting, the The Angelus, following the First World War. The owner of the painting made a huge profit from this sale, whereas the family of the artist lived in poverty. Many artists, and their families, had suffered from the war, and droit de suite was a means to remedy socially difficult situations.
Legislation
European Union
The 2001/84/EC directive mandates a somewhat uniform system of droit de suite across the European Union. This directive is controversial in the United Kingdom.
France
In France, this system is in force through article L122-8 of the Code of intellectual property. It will get reformed by article 48 of the DADVSI law, which implements directive 2001/84/EC. During discussions in the French Parliament leading to this law, it was argued that in practice, the droit de suite is only paid at auctions, and that it thus disfavors the Paris art marketplace compared to London or New York. Following DADVSI, a government regulation (through a decree) is to set degressive rates and maximal fees so that the Paris marketplace is not hindered.
United States
The California Resale Royalty Act, (Civil Code section 986) entitles artists to a royalty payment upon the resale of their works of art under certain circumstances.
The droit de suite was first proposed in Europe around 1893, in response to a decrease in the importance of the salon, the end of the private patron, and to champion the cause of the “starving artist.” California’s droite de suite statute, the California Resale Royalty Act, was enacted in 1976. It applies to all works of fine art resold in California, or resold anywhere by a California resident, for a gross sale of $1000 or more. It mandates a five percent royalty on the resale price of any work of fine art. An artist may only waive this right “by a contract in writing providing for an amount in excess of five percent of the amount of such sale.”
At least one scholar has proposed that this law is unconstitutional in that it effects a Fifth Amendment Taking of private property.
Advice given to the Australian Federal Government by the Solicitor General lends support to the above opinion. The Australian Resale Royalty act 2008 is not retrospective in application because of advice by the Commonwealths Solicitor General that retrospective application (without compensation for existing owners ) would run a high risk of similar issues of "unjust enrichment" under section 52 of the Australian constitution.
And the opt-out rather than opt-in nature of the act made it impossible to be part of the Commonwealths Copyright Act, as a result the act is a 'stand alone' act.
See also
