No Artist Resale Rights for US, for Now

Congress failed to vote on the measure before the end of their latest session.

US Capitol, West Side Photo: Martin Falbisoner via Wikimedia Commons
US Capitol, West Side Photo: Martin Falbisoner via Wikimedia Commons

Supporters of artist resale rights in the US have been sent back to square one. As of the close of the second session of the 113th Congress on January 3, all unfinished business—that is to say, any bill not passed by the House of Representatives and the Senate by the end of the session and signed by the president— is now dead in the water.

According to the Art Law Report, such is the fate of the 2014 American Royalties Too Act (ART). The bill was championed by Representative Jerrold Nadler (D-N.Y.), together with Senators Tammy Baldwin (D-Wisc.), who introduced the bill this past February, and Ed Markey (D-Mass.) last year. Had it passed, ART would have provided a resale royalty of five percent (up to $35,000) to be paid to visual artists for every work sold for more than $5,000 at public auction (see New “American Royalties, Too” Bill Would Allow Resale Royalties for US Artists and US Lawmakers Give Artist Resale Rights Another Look).

For a while, ART seemed in good stead to appear for a vote last summer (see US Lawmakers Give Artist Resale Rights Another Look). The Copyright Office even stepped in to support it. But the bill didn’t survive the 113th Congress, which has earned the not-so-glorious title of second least productive Congress in modern history, having passed a mere 296 bills.

Sotheby’s and Christie’s Lobbying

The $1 million allegedly spent by Sotheby’s and Christie’s lobbying against such measures might well also have had a role to play in the bill’s dismissal. Of course, legislation can always be reintroduced in the next session but whether or not that will happen is unclear.

Seventy countries─including the UK, Australia, and Mexico─currently provide visual artists with a cut of the resale price of their work, but the US has long resisted legislating, arguing that such measures would be detrimental to the art trade.

Detractors may have a point. According to a study commissioned by the British Art Market Federation (BAMF), the resale rights─which apply up to 70 years after the artist’s death in the European Economic Area─are among the factors eroding the UK art market (see Artist Resale Rights Depressing UK Market, Study Says).

Arts Economics’ Clare McAndrew, who led the study, noted that the booming postwar and contemporary sector has shifted to the US, and particularly, to New York. “If you look at the US, sales have gone way beyond boom era levels,” she said. “Since 2010 they haven’t grown in the UK at all, they’ve dropped.”

The resale rights have also triggered tensions between dealers who abide by the law, and those still tempted to ignore their legal obligations (see UK Art Dealers Are Dodging Artist Resale Rights). And although the European Commission is working on smoothing over the process, issues including the notorious “Cascade effect,” which involves art dealers occasionally being forced to pay the ARR twice for the same artwork, are yet to be resolved (see Art Industry Representatives Sign European Commission’s New Recommendations on the Controversial Artist Resale Right).

A Fair Measure

Yet resale rights are considered by their champions as a fair measure, one that puts visual artists on a par with other creative practitioners, including musicians, authors, and screenwriters, all of whom who receive royalties when their work is played or performed.

With the US once more declining to act on the resale rights, the art market continues to be an uneven playing field. As Sotheby’s Matthew Weigman previously told artnet News, “Somebody has to think twice, do we want to sell this in Europe—or in Switzerland or the US?”

A petition spearheaded by European Visual Artists (EVA), the CISAC, and GESAC is currently asking for a global resale right that would be mandatory for all member countries of the World Intellectual Property Organisation (WIPO). As of press time, it has garnered 14,897 signatures.

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