The Utility Of Artist's Resale Right

• Published date: 03 August 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts
• Law Firm: Khurana and Khurana
• Author: Mr Divya Tirkey

Droit de suite or Artist's Resale Right (ARR), a concept that traces its origin to France in the 1860s, exists as an economic justification for all that the artists lose during their creative lifetime. ARR is considered a moral right of the artist. The share in the resale indicates that when later the value of the work increases, it is assumed that the increased value was already inherent in the piece from the very start.

The definition of art as a cultural good, reflecting back upon the culture of the society, still remains vague, however, attempts have been made. Klamer (2004a) and Throsby (2001) give it three characteristics in a functional definition: creative production, with a symbolic meaning, and the output is intellectual property. Art as a commodity, however, does not behave like a normal good in the market, as most economists would agree. The basic belief that seems to have been concluded upon is that certain assumptions exist about the relationship between the artist and the society that cause the delayed realization of the work's value. More specifically, it is the "mental poverty" of the society resulting in the economic poverty of the artist.

The image is of an artist who is starving, struggling, and creating out of poverty (considering that conflict has been a recurring background element of the greatest of artists), and selling it for a meager price, and finally maybe a few years later or a fifty years later, his work becomes worth thousands of dollars. However, the action is not involuntary since the artist has his own fixation and affinity for things that call for such controversy or instability. That is exactly what separates him from his bourgeois audience. The aim, therefore, is to compensate, if not him, then his successors, so that even though the controversy surrounding the artist leads him to poverty, it does not become a cause for the eternal poverty of his successors, especially in cases where the success of the work increases exponentially post-death of the artist.

LEGAL FRAMEWORK AND ANALYSIS

Having originated in France, internationally, the Berne Convention for the Protection of Literary and Artistic Works in 1948 first included ARR. The Berne Convention of 1971 mentions the "inalienable right to an interest" of the authors and the artists in a resale of their work. However, it is optional legislation and works on the principle of reciprocity between nations. The need for legislation like this was felt in alignment with the...