Droit de suite, or the legal right for artists to have a share in the profits made from the resale of their work, exists in the majority of the countries of the European Community; it is not part of the law in the UK. Should it be enacted and, if so, could it be?

The reasoning behind droit de suite legislation is that artistic works are often resold at a far higher price than those originally paid to the artist – which is unfair. This situation is poignantly, if somewhat misleadingly, illustrated by the great Romantic tales of artists such as Rembrandt or Van Gogh who lived in apparent poverty during periods of their lifetime and whose works are now being sold and resold at incredible prices. However, for those artists and their heirs who have not become the objects of Romantic fascination the situation is a real cause of concern. The increase in the market price is often due to the long-term enhancement of the artist’s reputation in the market place; this itself derives in part from the skill and labour of the artist during many years of professional practice. However, artists rarely benefit from increases in the market value of their works, partly because they often produce less work in later years or sell less – or they are dead. Resale royalty legislation changes this situation by giving artists and their heirs a right to a small percentage of the resale price of an artistic work.

Arguments against the introduction of droit de suite legislation are not insubstantial. One is rooted in a belief that the introduction of such a right is an unwarranted interference with the laws of property and hence with the legitimate operation of the marketplace. However, the law has long recognised that for the market to exist at all the producers need to be guaranteed a fair return for their work. This has been done in the UK through copyright legislation, which exists to protect authors against economic abuse of their original skill and labour, and to enable them to derive income on a ‘just deserts’ basis from any merchandising of their images through reproduction or broadcasting. In contradistinction, moral rights legislation protects authors against derogatory treatment of their works which affects their reputation and integrity.

Moral rights and copyright legislation constitute the basis of what is called intellectual property, and has been introduced throughout the developed world to make acceptable inroads into what otherwise remain the all-powerful rights to use one’s own property as one wishes. By recognising the special nature of intellectual property in an image as opposed, say, to a cabbage, the law has sought to establish rules whereby artists of all disciplines are better able to make a living; the more so as the technological revolution of the Twentieth Century has made merchandising easier and the quality of the products higher. However in the visual arts the problem is more complex; unlike musicians and literary authors, most contemporary artists do not earn a living by exploiting their intellectual property rights in the form of collecting copyrights, or by specifically making original works for the specific purposes of merchandising them. They earn their living mostly by the sale of the original, leaving any marketing to others who may seek to carve out another market place. Therefore copyright, although it guarantees them income from reproductions of their works, does not guarantee them any income from the market activity which actually generates most money – the sale and resale of their work for profit.

The law has therefore recognised the peculiar nature of intellectual property through copyright and has added to this the moral right of artists to protect their reputations, but has not in the UK added the important resale royalty right.

A further argument suggests that droit de suite legislation would distort the art marketplace by driving it to countries where salesroom prices would be less because the resale royalty is not taken by law from the resale profit. Given the international nature of the salesroom business, this objection is at best jejune, and weighed against the benefits that a small resale royalty might bring to contemporary makers and their heirs it looks a little mendacious.

A third argument against droit de suite legislation is that it would be complex and difficult to administer. There is no intellectual property right which is simple and easy to administer. All reproduction rights have taken many years of hard work by authors’ collection societies to become accepted and established. The same would be true of droit de suite. At first it would probably be collected easily only from major salerooms, but even that alone could generate much-needed income for artists. A well organised artists’ collecting society could put to use the experience gained in the collection of copyrights to ensure that droit de suite became established throughout the marketplace in the shortest possible time, as has happened in France and Germany, for example.

With the increasing harmonisation of the laws in the countries of the EEC (1992 and all that), the UK Government has little time for prevarication before it is forced to legislate. Moreover, the UK is already a signatory to the Berne Convention on intellectual property, one clause of which states:

“The author, or after his death the persons or institutions authorised by national legislation, shall with respect to original works of art enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work”.

Although there is some argument about whether the UK’s obligations under the convention require the Government to pass legislation to give effect to that clause (as against our Government simply supporting the idea in principle), pressure from the EEC and its Council of Ministers will (as with moral rights enacted here in 1988) eventually succeed.

It is time UK artists had this right. The Whitford Committee which reported on UK intellectual property law in 1977, although arguing against the introduction of droit de suite legislation, recommended that if it were introduced:

  • it should be given to artists, who should be left to administer it themselves; but the right should not be inalienable (i.e. artists should be able to transfer or sell the right, as with copyright);
  • it should, in accordance with the Berne Convention, last for the artist’s lifetime plus fifty years (as with copyright);
  • apply only to public sales (i.e. public auctions);
  • and that all artistic works should be included in the resale royalty scheme, which should only operate if a profit in excess of inflation was made.

In our view the arguments against droit de suite simply do not outweigh those for its introduction. It is not, as some would have it, a bizarre and unusual right, derived from an over-zealous post-Napoleonic republican notion of citizen’s rights and wholly inapplicable in a parliamentary, common law democracy. It is a simple and effective mechanism for ensuring that contemporary artists can earn a decent living from their work during their lives. It would be no more difficult to collect than any other intellectual property right – and, in the light of over 100 years of collecting the income from such rights, it should be much easier. Nor will it depress the art marketplace, since the money which is taken at resale has not proved a disincentive: on the contrary the money that goes to the artists acts as an important incentive for them. Artists do not get a fair return for their work compared to the returns their works may make for other people. There is a simple and elegant solution to this inequality – droit de suite. Why not?

© Henry Lydiate & James Odling-Smee 1991

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.