Artists Resale Rights A Tyeb Mehta painting makes headlines at art auctions selling in crores.

The works of most of his contemporaries like S H Raza, M Hussain, !ehangir Saba"alla, # Souza also cross the crore or million mark$ these being the same works that the artists had probably sold for a few thousands a couple of decades ago. Most would belie"e that such is the art world$ after all ha"en%t the greats like &an 'ough, Rembrandt and Monet died in near penury( The morbid )oke was always that the artist commands a price for his paintings only once he is dead. The wise buyer who picks up art when the artist is not that well known stands to benefit from his in"estment when the artist gains popularity * it is also an in"estment fraught with risk and hence the buyer deser"es the gains. +nce it is sold, the painting belongs to the buyer to do with as he pleases, right( Howe"er, when it comes to art, things can ne"er be so cut and dried. The artist may sell a painting but the copyright remains with him and there has always been the hankering that the artist and his heirs too need to benefit from the delayed pecuniary rewards of their work. Thus a number of countries ha"e introduced the artist resale right or droit de suite. This right allows artists to participate financially in the resale of their original works of art. As with copyright, the duration of the resale right is usually the lifetime of the artist plus ,- years. The droit de suite was first proposed in .urope around /012, in response to a decrease in the importance of the salon, the end of the pri"ate patron, and to champion the cause of the 3star"ing artist.4 Historically it was prompted by the sale of the painting Angelus by !ean ran5ois Millet for /,--- francs in /067 and its resale )ust /8 years after Millet9s death in /001 by the copper merchant Secretan for 772,--- francs$ while the artist%s family li"ed in po"erty. rance was one of the first countries to introduce this right. The same was regularized throughout the .uropean :nion in ;--/. The :< too has its own "ersion of the Artist Resale Rights though they ha"e a gradation wherein the percentage of payment to be made on resale to the artist decreases as the amount paid for the artwork increases. Thus, an artwork sold for upto = 7-,--- will command 8> but one sold for more than = 7--,--- will be entitled to only -.;7> as resale fee to the artist. More recently, in ;--1 Australia too introduced The Resale Royalty Right for &isual Artists Act ;--1 which gi"es the creator of an artwork the right to recei"e a royalty when their work is resold on the commercial art market. or artworks already in e?istence at 1 !une ;-/-, the royalty applies only to the second and subse@uent resale after that date. The royalty is calculated as 7> of the sale price, but does not apply where that price is less than A/,---. Bt can be paid directly to the creator, on resales made during their lifetime and to their heirs for resales made up to ,- years after the creator%s death. The primary legal obligation to pay the royalty rests on the seller. Howe"er, in economic terms, it may effecti"ely be passed on to the purchaser. .ligible artworks include original works of graphic or plastic art, including pictures, collages, paintings, drawings, engra"ings, prints, lithographs, sculptures, tapestries, ceramics, glassware, photographs, fine art te?tiles, installations, fine art )ewellery, artists% books, car"ings and multiCmedia artworks.

."en the Dhilippines recognises the resale rights of artists and The Bntellectual Droperty Eode of the Dhilippines FRepublic Act 0;12G gi"es the authorHartist or his heirs a 7Cpercent share in the gross proceeds of the sale or lease of the original painting, sculpture, or manuscript, subse@uent to its first disposition by the creator. This right e?ists during the lifetime of the author or artist and fifty years after hisHher death. +ne would feel that a great disser"ice is being done to Bndian artists that they are not being awarded the same rights as en)oyed by artists the world o"er. Iut the truth is that Bndia is one of the first countries to ha"e pro"ided for resale rights to artists. The Artist%s Resale Right is contained in Section 72A of the Eopyright Act of /17,. :nder this Section, certain artists or his legal heirs en)oy a Jresale share right in original copies% of their works pro"ided that certain conditions are met. The original copies referred to in the title of the Section refer to an Joriginal copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work%, and to benefit from the right contemplated by this pro"ision of the statute, the artist must ha"e been the first owner of rights under Section /, of the Act. The resale right says that each time a work of art is sold within the copyright period, the artist will get a share. And this period is computed as copyright term FtimeG plus 6- years after the death of the artist. That means if the painterHsculptorHauthor is ali"e within the Jselling period% he gets a percentage of the resold amount, and within 6- years after his death, his family would be entitled to a percentage each time it is resold. Iut if the work is commissioned, then this term would only be 6- years from the time of the first resale. Bf an artwork is reCsold for o"er Rs/-,--, the e?act share which would be payable to the artist or his legal heirs would, according to the statute, be fi?ed by the Eopyright Ioard whose decision would be final. The statute also empowers to Ioard Jto fi? different shares for different classes of work% although it stipulates that the share may not Je?ceed ten per cent of the resale price% in any case. inally, according to Section 72AF2G of the Act, any dispute relating to the Artist%s Resale Right is to be Jreferred to the Eopyright Ioard whose decision shall be final%. The issue is not the pro"ision for the resale right but rather the ignorance of its e?istence. ."en an artist of Tyeb Mehta%s calibre is said to ha"e remarked about the auction of his paintings in millions, 3<ash hamare paas bhi resale right hota.4 FBf only we, in Bndia, too hade resale rightsG. Kespite its e?istence for more than 7- years , reportedly, not one artist has e"en applied for his resale rights. #o gallery, or auction house, has gone on record to say it has made a payment on a secondary sale to the artist in @uestion. +f course there will be numerous hurdles faced with artists demanding their rights and the manner in which the same will be pro"ided to them. The best system would be to appoint a collection agency which will track sales and collect the percentage due to artists on resale of works. The same is currently in practice in the :<. Howe"er, the collection of the resale fee

aside, the Herculean task will be not only to mobilise the artists and their heirs in recognising and demanding their rights but also to ensure that the ma)or players in the art business, auction houses, galleries and dealers, accept resale rights as part of their business dealings. ~ Razvin Namdarian