Resale Royalty Rights
for Artists
What relevance do artists like Paul Gaugin and Johannes Vermeer have in South African copyright law? The answer is simple: they have none – at least, not yet. The Copyright Amendment Bill, which is currently awaiting approval from the Constitutional Court, proposes a new form of protection for local artists: that of resale royalty rights.
WHAT ARE RESALE ROYALTY RIGHTS?
Also known as the droit de suite, resale royalty rights propose to protect the rights of artists to profit off of their artistic works beyond their initial sale. While an artist’s rights in terms of their work normally end once the piece is sold to the first buyer – be it a private person, an auction house, or a museum – resale royalty rights give artists an opportunity to earn an additional amount off of sales occurring between the first purchaser and any secondary buyer. In South Africa, this would take the form of a predetermined amount allocated by the Minister of Economic Development, which will likely be dependent on the value of the secondary sale. For instance, if an auction house sells an artistic work for R400 000, the Minister could determine sales in the range of R100 000 to R500 000 to earn an 8% profit for the artist. This would mean, in these particular circumstances, that the artist would earn R32 000 in addition to the amount at which they initially sold their piece to the auction house.
WHO OVERSEES THE RETURN OF ROYALTIES TO ARTISTS?
The Copyright Amendment Bill proposes that collecting societies oversee the transfer of resale royalties from the secondary (or primary) buyer of an artistic work to the artist of the work. A collecting society is a non-profit company authorised by the Companies and Intellectual Property Commission to facilitate deals between artists and potential purchasers. With the artist’s permission, it can receive renumeration for secondary sales of artistic works on behalf of the original artist and can authorise licenses to relevant artistic works. A collecting society is required to submit regular reports to the aforementioned Commission to assure that no laundering or fraud occurs.
WHY ARE RESALE ROYALTY RIGHTS IMPORTANT?
History has shown that many artists who sell their pieces to collectors or auctioneers earn only a fraction of what the pieces are later sold for in the art world. The notion of a ‘starving artist’ is particularly relevant in South Africa, where artists who are historically disadvantaged in terms of race or gender rarely get to enjoy the fame and economic value their works later attain when sold by wealthier parties. It is thus essential that their livelihood is protected, so as to assure South Africa’s vibrant artistic culture is preserved.
Though the resale royalty right is not yet in force, its potential for growth and opportunity in copyright law must be recognised and encouraged. For any further questions regarding copyright law, please contact Xuba and Associates Attorneys.