The regime would be restricted to auction houses, with an exclusion of commercial galleries and private sales.
Its report states that -
The Artists’ Rights Society (ARS), the main copyright and licensing collecting agency in the US, is pushing for legislation that would see droit de suite, or artists’ resale rights, become federal law. ... the new legislation will be different, said Theodore Feder, president of the ARS. Resale fees “would not be applied to galleries”, partly because they are such vocal opponents of droit de suite, “but also because auction sales are public, while gallery sales are private, so it would be difficult to track resales”.The plan has attracted the usual comments, some disingenuous. The report notes that -
The late Senator Edward Kennedy tried to enact the resale royalty in 1987 as part of his original draft for the Visual Artists Rights Act (VARA) but it proved so contentious that it was removed from the otherwise successful act. Now, the “person leading the charge is Bruce Lehman”, said Feder, referring to the former Commissioner of the United States Patent and Trademark Office who helped draft the original 1976 US copyright law and the 1998 Digital Millennium Copyright Act.
“The rights collecting associations, the principal lobbying force for enacting the resale right in the US and abroad, would break out the champagne and dance in the streets,” if the resale law was made legal, said John Henry Merryman, emeritus professor of art and law at Stanford Law School in California and author of Law, Ethics and the Visual Arts. “The small minority of artists whose works have a significant secondary market would get richer. The great majority of artists, who have no significant secondary market, would have fewer gallery exhibitions and decreased sales in the primary market,” he said, adding that an application of the tax to auction sales only “would be seen as unfair discrimination. [The auction houses] would certainly lobby against it.”European regimes have not, I note, meant the end of civilisation (or of auction houses, dealers and commercial galleries) although it remains a moot question as to whether the droit is the best way to reward new/established artists and their estates.
Dealers also oppose the measure. Lucy Mitchell-Innes, the president of the Art Dealers Association of America (ADAA), said that: “Although the ADAA and its membership is a strong supporter of artists’ rights ... it has long been our belief that a droit de suite law in the US would be extremely difficult to enforce and therefore be ultimately unsuccessful. The US collector base, many of whom are very generous philanthropists ... would be resistant to a resale tax.”
