US Congress Considers Resale Royalties for Visual Artists in New Equity for Visual Artists Act

Along with the controversial Stop Online Piracy Act, which aims to protects copyrights by cracking down on internet service providers, US legislators are likewise considering steps towards a “droit de suite” law, that would cut visual artists a (tiny) slice of the pie when their works are resold. The proposed Equity for Visual Artists Act of 2011 would set aside 7% of the price for works resold for more than $10,000 at major auction houses, with half the proceeds going to the artists and half to non-profit art museums.

Congressman Jerrold Nadler (D, New York), one of the bill’s sponsors, said, “It’s important to ensure that artists are fairly compensated — even more so in difficult economic times, when normal channels of support for artists are less dependable. This legislation would help working artists and provide incentives for the creation of art by providing resale royalty rights and establishing a fund for nonprofit art museums to buy art from those artists.” Loopholes abound in the proposed law: works under $10,000, works sold through auction houses with less than $25,000,000 gross sales, sold abroad, or through private dealers, or online are not subject to the 7%.

In effect, it’s a Sotheby’s and Christie’s surcharge, paid to nonprofit museums, with a 3.5% bone thrown to the upper 1% of artists as justification.  Section 3, the meaty paragraph of the relatively short bill, outlines the bizarre 7% deal, proposing that a “collecting society” be paid the money, which will in turn send half of the royalty to the artist “as copyright holder”, and the other half to a fund for “purchases by nonprofit art museums in the United States of works of visual art authored by living artists domiciled in the United States.” Why museums? Why not the SPCA, or the ACLU?  Whose copyright is it anyway? A further provision forbids artists from waiving this new right.

The bill goes too far, or it doesn’t go far enough- why not cover all resales of all visual artworks? Why not give the artists the whole 7%? On the other side of the coin, it puts the government into the business of deciding what is and is not art, always a tricky business bound to employ platoons of lawyers for many years. Physical works of art, whatever their transcendent effect, are property like any other property, and ought to be treated by the same rules.

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