Resale and Intellectual Property Right on Art

Artist resale rights

Visual artists around the world have historically encountered difficulties when faced with the legal protection of their work. They are often  unaware of the ways in which they are able to leverage power in their favour. A clear understanding of one’s fundamental rights as an artist is of vital importance. Knowledge of the resale right is particularly essential because it is able to ensure that the artist may benefit each time that his or her work is resold.

What is resale right?

The resale right of an artist, also known as droit de suite, refers to the creator’s right to receive adequate protection and fair compensation whenever an art market professional sells their work. It guarantees the ability of the artist to retain a share from the resale of their art by a gallery or an auction house. The royalty price that the visual artist or, in the case of the posthumous resale of the artist’s artwork, their family receive, varies according to different countries and secondary markets. It typically consists of a rather small fraction of the resale price.

During the initial stages of their career, it is not unlikely for artists to sell their work to dealers or collectors for especially low prices. When these creators eventually become successful and their reputation firmly established, the same dealers are quick to place their artworks back on the market, potentially receiving a sizeable sum whilst the artist is left empty handed. This decidedly unjust system is one which turns a blind eye to the role of the artists and the value that their reputation has bestowed upon their own work.

In this way, it is clear that the resale right of creators is exceptionally vital and that their work’s appreciation should be credited appropriately. The payment received by the artist when the resale right is in place, whilst insignificant to the sellers, is an essential source of income for the creator. This right is the only means with which artists are able to receive an equitable share in the value of their artworks during the resale stage, and is highly important in light of the way in which artists, as opposed to writers and composers, receive a rather meagre amount of earnings for the reproduction of their own work.

Intellectual property rights in Malta

The artist’s inalienable right to a royalty in Malta was established in 2006 with the implementation of the Artists’ Resale Right Regulations. This was only possible following Malta’s Intellectual Property Directorate where a substantial number of calls for feedback from artists and auction houses were made. This ultimately allowed the directive to be implemented into national law in Malta. A number of conditions, however, are tied to this law, including that the resale right can only be applied to works with a value below €1,500 and does not apply to any artwork that is less than three years old. The right also solely applies to transactions made by “art market professionals” and its duration consists of the artists’ lifetime with the addition of 70 years after their death.

A negative reaction to the implementation of the artists’ resale right regards the perception of a negative impact on the art market. Another concern is that, rather than encouraging artistic production, this right would only contribute to increasing the income of successful artists whilst simultaneously discouraging budding creators. In direct reaction to this, those who support its implementation argue that no negative effects on the art market have occurred in countries that have had such a right in place for decades. It is undeniable that the subsequent sales of artists’ work is vital for their success.

Ultimately, it is evident that accountability in the art market is, in light of this, exceptionally important. Despite being criticised as ‘undesirable’ by some, the artist’s right for adequate compensation for his or her own gruelling labour remains necessary and essential.

Written by Melanie Zammit for ARTZ ID.

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