The United States Copyright Office has reversed a long-standing policy and is urging Congress to pass new legislation that would provide visual artists with a royalty payment upon the resale of their copyrighted work. This approach recognizes that a visual artist should be paid when a unique work appreciates in value. This is an about-turn for the US which, previously, has never allowed visual artists to receive a royalty after the first sale of a work.
In a report issued this month, the Copyright Office recommended that painters, illustrators, sculptors, photographers and the like be awarded a royalty when their work is resold at a profit. Others, like authors, have always benefited from an ongoing stream of income from their works because a work or authorship can be reproduced endlessly and each first sale results in a payment to the author — some visual works, such as paintings, are unique and their value resides in the uniqueness. As recently as 1992 the Copyright Office had decided the policy of awarding visual artists the same ability to collect an ongoing payment — a right known world-wide as droit de suite — was not a good idea, despite being the norm in dozens of other countries.
The office is now urging Congress to “consider ways to rectify the problem” by ensuring artists have a financial stake in the re-sale of their works; hence being able to enjoy the long-term increase in value associated with unique pieces.
Two years ago, a bill sponsored by New York Democratic Rep. Jerry Nadler was defeated. New legislation based on that bill, known as the Equity for Visual Artists Act, is now wending its way through Congress
A California law that had the same effect as the pending legislation was struck down as unconstitutional in 2012 by a federal judge because it attempted to impact sales outside California and thus violated the commerce clause.