Droit de suite

Overview
Many nations recognize the droit de suite,1 under which artists receive a royalty each time the original, tangible embodiment of their work is resold. The practice was first recognized in France in 1920 and then adopted in other civil-law jurisdictions. More recently, a number of common-law jurisdictions have adopted some form of the droit de suite. In those countries that recognize it, the droit de suite is considered a moral right, albeit one with economic value. See generally U.S. Copyright Office, Droit de Suite: The Artist’s Resale Royalty (Dec. 1992) (“1992 Copyright Report”); U.S. Copyright Office, Resale Royalties: An Updated Analysis (Dec. 2013) (“2013 Copyright Report”); 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §§ 8C.04[A][1] & n.3 (rev. ed. 2017) (“Nimmer”).2

The droit de suite protects visual artists, who face particular difficulty in capitalizing on their work. Literary and recording artists can generally profit from their efforts by controlling the reproduction of books or music. For visual artists such as painters and sculptors, however, the right to control reproduction is often not their principal source of income. Rather, it is often the sale of their original work that allows them to make a profit. The droit de suite gives these artists an economic interest in subsequent sales of their original work, thereby allowing them to capture some of its appreciation in value after the first sale.

The droit de suite also appears in international copyright law. Since 1948, the Berne Convention has recognized that artists possess an “inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.” Berne Convention for the Protection of Literary and Artistic Works art. 14ter(1), Sept. 9, 1886, as amended Sept. 28, 1979, S. Treaty Doc. No. 99-27 (1986). Nevertheless, the Berne Convention does not obligate its signatories to adopt the droit de suite. Instead, the Berne Convention makes the recognition of such rights optional, but rewards such recognition with reciprocity: countries recognizing the right will protect the right of each others' artists. See Lee D. Neumann, The Berne Convention and Droit De Suite Legislation in the United States: Domestic and International Consequences of Federal Incorporation of State Law for Treaty Implementation, 16 Colum.-VLA J.L. & Arts 157, 159 (1992). The United States became a signatory to the Berne Convention in 1989, but to date, it has not adopted the droit de suite. As early as the 1970s, Congress considered adopting the droit de suite as part of U.S. copyright law, but those efforts have never proved successful. A droit de suite provision made its way into an early version of the Visual Artists Rights Act of 1990 (“VARA”), but was removed from the bill that Congress ultimately enacted. Compare S. 1619, 100th Cong., 1st Sess. (1987), with VARA, Pub. L. No. 101-650, §§ 601–10, 104 Stat. 5089 (1990). Instead, VARA directed the Copyright Office to conduct a study on the feasibility of implementing such a right in the United States. VARA § 608(b).

In 1992, the Copyright Office issued an extensive report concluding that there was insufficient economic or copyright-policy justification to adopt the droit de suite in the United States. See generally 1992 Copyright Report. The report recommended that “[g]iven potential problems of preemption, enforcement, and multiple application, any droit de suite that is enacted in the United States should be at the federal level.” Id. at vi; see also id. at 77–86. Two decades later, members of Congress requested that the Copyright Office revisit the issue, and the Copyright Office issued a second report. See generally 2013 Copyright Report. This time, in light of “the adoption of resale royalty laws by more than thirty additional countries since the Office’s prior report,” the Copyright Office endorsed “implementation of a resale royalty right in the United States ... as one alternative to address the disparity in treatment of artists under the copyright law.” Id. at 1, 3. Congress has not acted on the Copyright Office’s recommendation.

Source

 * Close v. Sotheby's, Inc., 2018 WL 3322222, at *1–*2 (9th Cir. July 6, 2018).