Copyright uncovered: What should I know about Artist’s Resale Right?

    Every quarter, our Legal team answers your questions about copyright. This month they introduce the Artist’s Resale Right, granting you, as an artist, a share in the increasing value of your work.

    What is Artist’s Resale Right?

    Artist’s Resale Right (ARR) entitles you to a royalty when your copyright-protected work resells on the art market. It is derived from European law and was first introduced in France in 1920, where it is alternatively known as ‘droit de suite’.
     
    ARR was implemented into UK law in 2006. It was extended in 2012 so that when you die, your beneficiaries can also benefit, supporting the costs of managing your estate and helping to continue your legacy.
     
    In the UK, ARR has the same duration as copyright – your lifetime plus a further 70 years. ARR royalties can only be collected and distributed via a collecting society such as DACS.

    When does ARR apply?

    You, or your estate, are entitled to ARR royalties if all the following conditions are met:

    Sale price

    Your work is resold for more than €1,000. Use our helpful online calculator to check the exchange rate on the date of sale to see if the sterling value meets the threshold.

    Type of sale

    Your work is sold on the secondary market with the involvement of a dealer, gallery or auctioneer - commonly referred to as ‘art market professionals’. ARR does not apply to sales between two individuals or between an individual and a museum.
     
    For art market professionals conducting sales via web-based platforms, if the sale takes place in the UK, ARR will be applicable provided all conditions have been met.
     
    If you sell a work directly to an art market professional and they resell it within three years for €10,000 or less, it is exempt from ARR. This is because the sale is covered by the ‘bought as stock’ exemption, which was put in place to allow art dealers to invest in new and upcoming artists.

    Nationality of artist

    For qualifying sales taking place in the UK, if you are a national of a country within the European Economic Area (EEA), you or your estate will be eligible for ARR.
     
    Art market professionals can use our online search tool to find out if royalties should be paid to a particular artist or estate.

    Type of work

    Your work is protected by copyright and is, for example, a work of graphic or plastic art, like a painting, photograph, tapestry, sculpture or glassware. The reason for this two-fold requirement is because the laws covering copyright and ARR do not define artistic works in the same way, therefore both definitions must be satisfied to determine if a royalty is due.
     
    Sales of limited editions may also qualify for ARR, provided the editions have been made by you or under your authority.

    How much money can I get?

    ARR royalties are prescribed by law as a percentage of the overall sale price, on a sliding scale from 4% to 0.25%. The higher the sale price, the lower the royalty percentage rate applied. Royalties are capped at €12,500 - the maximum you or your estate can receive from a single sale. Your work would need to sell for more than €2 million to reach this cap.
     
    The art market professional and the seller are jointly liable for the payment of the royalty.
     
    More information about how royalties are calculated can be found here. You can also use our royalty calculator.
     
    Since the introduction of ARR in the UK in 2006, DACS has paid over £50 million in ARR royalties to 4,000 artists and estates. In 2015 alone, we distributed almost £10 million. These royalties have crucially supported artists to pay for the costs of running their practice. They have also helped estates pay for expenses such as storage of artworks, archiving and insurance, and time and resources in authenticating provenance.
     
    Read more in our white paper, Ten Years of the Artist’s Resale Right: Giving Artists Their Fair Share.

    What happens to the right when I die?

    You cannot sell or ‘assign’ ARR to someone else during your lifetime, and you cannot be forced to ‘waive’ it or give it up. You can, however, pass it down to a named individual or charity upon your death. As ARR will form part of your estate, it is very important to include it in your Will.
     
    For more information on what happens to ARR after death, read our factsheet.

    What are the implications of Brexit?

    Although ARR is based on an EU Directive (the European Resale Right Directive 2001/84/EC), it is part of UK law. The legislation itself is known as The Artist’s Resale Right Regulations 2006, as amended in 2011.
     
    While the UK negotiates to leave the EU, UK laws remain in place even if they are derived from EU law. We are monitoring the implications of Brexit closely and are engaging with policy-makers and the industry to ensure your rights are safeguarded during this process and beyond. We will continue to campaign on behalf of visual artists for ARR to be preserved.

    The future of ARR

    While ARR has been adopted in more than 80 countries worldwide, it is not recognised in China and across most of the US, two of the biggest players in today’s art market.

    As a member of CISAC, DACS has been proactive in supporting the campaign for a globally recognised resale right. We will be participating in the World Intellectual Property Organisation’s (WIPO) conference on ARR taking place on 28 April in Geneva. This timely event is an extraordinary opportunity to demonstrate how ARR has supported artists and estates with their practices and legacies, encouraging the international WIPO delegation to move forward in recognising ARR worldwide. We will share more details about our involvement soon.

    Copyright advice

    Need advice about copyright or the Artist’s Resale Right? If you are a Copyright Licensing and Artist’s Resale Right member, you can get free guidance from our Legal team – use our Copyright Advice Service.
     
    Not a member? Sign up now:

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    Image: River Avon Mud Hands Circle, 1991, Richard Long © Richard Long. All Rights Reserved, DACS 2017. Photo: Richard Long. License this image.

     

    Posted on 23/03/2017 by Rachel Collins