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THE YALE LAW JOURNAL FORUM
APRIL 25, 2014
The Unconvincing Case for Resale Royalties
Guy A. Rub
INTRODUCTION
Here we go again. In late February 2014 a group of congresspersons
introduced a bill- The American Royalties Too Act of 2014 (known for its
catchy abbreviation: the ART Act),' which, if passed, will grant visual artists' a
right to collect royalties when their artworks are resold. This is the fifth
attempt to pass such legislation. However, unlike their predecessors, the
proponents of the current bill are now armed with a comprehensive report,
published by the U.S. Copyright Office in December 2013, urging Congress to
consider such resale royalty rights.4
This Essay casts doubts on the desirability of this legislative initiative by
focusing on a fundamental question: Does our legal system need to provide
additional subsidies to visual artists?
There are two main rationales for enacting resale royalty rights.
Historically, resale royalty initiatives, both domestically and abroad, were
motivated by a romantic notion that artists are so poor and in such a weak
bargaining position that they deserve special legal protection. In addition, the
Copyright Office, as well as the proponents of the ART Act, argue that in its
current form, the Copyright Act disfavors - maybe even discriminates
1. S. 2045, 113th Cong. (2014); H.R. 4103, 113th Cong. (2014).
2. The term visual artists is commonly used in the discussion on resale royalty rights. As
used in this Essay, visual artists are artists who create works that are typically sold in one or
very few copies. Painters and sculptors are the archetypal examples.
3. Previous bills that introduced resale royalty rights are the Equity for Visual Artists Act of
2011, S. 2000, 112th Cong. (2011); Visual Artists Rights Act of 1987, S. 1619, looth Cong.
(1987); Visual Artists Rights Amendment of 1986, S. 2796, 99th Cong. (1986); Visual
Artists' Residual Rights Act of 1978, H.R. 11403, 95th Cong. (1978). Additional initiatives, at
least since the 1960s, did not result in the introduction of a bill.
4. U.S. COPYRIGHT OFFICE, RESALE ROYALTIES: AN UPDATED ANALYSIS (2013) [hereinafter
COPYRIGHT OFFICE REPORT]. The position taken in this report is dramatically different from
the position taken by the Copyright Office in the past. See U.S. COPYRIGHT OFFICE, DRolT
DE SUITE: THE ARTIST'S RESALE ROYALTY (1992) (opposing the enactment of resale royalty
rights).
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