Twice in the last four years, a bill has been filed to adopt what is known as droit de suite, or resale royalty, in which an artist would be entitled under certain circumstances to a royalty on sales after the initial one. The most common justifications for these bills relate to fairness and uniformity. As to the first, many artists’ works do not become valuable until later in their careers, long after the works had been sold first. These artists, the argument goes, should share in the benefit of their increased regard. The uniformity argument has to do with droit de suite in other countries, though that is hardly a clear picture and many residents of those countries object to what they say is the effect on their local markets.
in both cases, the Congressional session expired before the bills became law (or were even passed by either house of Congress), and there remain no provisions in U.S. law for resale royalties. At the state level, the California Resale Royalties Act was declared unconstitutional in 2012 as a violation of the Dormant Commerce Clause by the U.S. District Court for the Central District of California, in lawsuit brought by Chuck Close and others against Christie’s, eBay, and Sotheby’s. That decision is on appeal in the Ninth Circuit).
This week proponents tried again. Senators Tammy Baldwin (D-WI) and Ed Markey (D-MA) and the Rep. Jerrold Nadler (D-NY) introduced the American Royalties Too (ART) Act of 2015 on April 16, 2015. Nadler and Baldwin led the charge last year. As with the 2014 version (but not the 2011 bill, the subject of the inaugural Art Law Report article), the ART would grant a 5% royalty on works sold for $5,000 or more, up to a total of $35,000 in total royalty payments.
It is difficult to see this becoming law, whatever its merits (even with the endorsement by the Copyright Office law year in favor of some sort of royalty system). The bigger problem is legislative inertia. Similar bills have fallen far short before (with many sponsors last year), and the 16 months immediately prior to a Presidential election is rarely a period of great compromise and legislative efficiency. I don’t even see this as a particularly partisan issue on which either party would have a default position.
This bill has been introduced earlier in the legislative cycle than the last two (last year’s was barely six months before the Congress ended, and only a few months before all Representatives stood for election, and the 2011 bill was just over a year before the election), so perhaps that will make a difference. As always, developments will bear watching.