Saturday, June 10, 2023

US Copyright Office Releases New Report on Resale Royalties

Last Friday, The U.S. Copyright Office publicly released a report on the issue of resale royalties for visual artists, otherwise known as the “droit de suite.” The report was requested by Congressman Jerrold Nadler and Senator Herb Kohl in 2012, and is an adjunct to the Office’s 1992 report on the same topic.

The report covers quite a bit of ground, including the Fifth Amendment’s takings clause, whether or not resale rights incentivize creativity, and the resale right’s effects on the primary and secondary art market. Here’s a bit from Maria Pallante, Registrar of Copyrights and Director, US Copyright Office.

On behalfofthe United States Copyright Office, and in response to your request, I am pleased to deliver an updated report examining the issues surrounding visual artists and resale royalties in the United States. This report is an adjunct to the Office’s 1992 report, Droit de Suite: The Artist’s Resale Royalty, and takes into account changes in law and practice over the past two decades.

In developing the current report, the Office solicited and received public comments from a diverse array of stakeholders and held a public roundtable, at which you appeared and offered remarks. Based on this process and independent research, the Office has concluded that certain visual artists may operate at a disadvantage under the copyright law relative to authors of other types of creative works. Visual artists typically do not share in the long-term financial success oftheir works because works of visual art are produced singularly and valued for their scarcity, unlike books, films, and songs, which are produced and distributed in multiple copies to consumers. Consequently, in many, if not most instances, only the initial sale ofa work ofvisual art inures to the benefit ofthe artist and it is collectors and other purchasers who reap any increase in that work’s value over time. Today more than seventy foreign countries – twice as many as in 1992 – have enacted a resale royalty provision of some sort to address this perceived inequity.

That said, the issues are as complex as the art market itself. We believe that Congress may want to consider a resale royalty, as well as a number of possible alternative or complementary options for supporting visual artists, within the broader context of industry norms, market practices, and other pertinent data.


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