COPYRIGHT
Artists
ARTICLE:
By Emma Stoker, solicitor, Michael Simkins LLP

Just a day after the Resale Right for Artists was introduced in the UK, the world record for the highest price paid for a photograph was set when The Pond-Moonlight by Edward Steichen was sold in the US for £1.6 million breaking quite spectacularly the previous record set just last November when Richard Prince’s Untitled (Cowboy) was sold at auction for £720,000.  Emma Stoker comments on how the law would apply to this sale ad the sale of The Pond -Moonlight taken place in the UK.

In the UK the purchaser (whose name has not been disclosed) and the seller would have been liable to pay Steichen’s estate a resale royalty of about £9,000 due to the introduction of the Artist’s Resale Right Regulations 2006.  Surely a drop in the ocean for anyone in the market for such a valuable piece? The Regulations are a part of the broader scheme to harmonise EU copyright laws, and they provide that photographers (and other artists) and their successors are entitled to a percentage of the price at which their work is resold, for the life of copyright. The requirements are that the buyer or the seller in the resale (or their agents where appropriate) are acting in the course of a business of dealing in works of art and the sale price is not less than 1,000 EUROS.  A resale royalty will not be payable to an artist when the seller has acquired the work from the artist less than three years before the resale, and paid less than 10,000 EUROS for the work. The liability to account for the royalty will lie principally with the seller, though in certain circumstances the buyer may also be liable. The question raised by critics of the Regulations, however, is will the introduction of such a levy on sales of works in the UK drive away the currently lucrative resale market to the USA or Switzerland where no such levy is imposed? In terms of the resale market for photographic works this risk is probably relatively small with few sales likely to attract significant royalties. For photographers and other artists, who see their works rocket in value after selling them for a relative pittance in the first instance however, these new Regulations could provide some satisfaction, especially if the work continues to change hands.  There is a sliding scale in terms of the royalty rate at which the artist will be paid starting at 4% of works resold up to 50,000 EUROS and 0.25% for the part of any sale price exceeding 500,000 EUROS.  The total amount payable is capped at 12,500 EUROS.

You might not expect to receive a significant income from resale royalties but it is worth taking a few steps to ensure you get what is due to you.

1. You cannot be asked to waive your right to this royalty, if anyone suggests a waiver, refuse.  Dealers cannot claim the royalty for themselves.
2. The right to receive the royalty passes on death, you should nominate who you wish to receive resale royalties in your will.
3. In the UK the Design and Artists Copyright Society (“DACS”) will be act as the collecting society for such resale royalties (see www.dacs.org.uk ).  Whilst you do not need to be a member of DACS to collect your resale royalty it may assist in speeding up any payment out to you if you register with them.

This update is © Michael Simkins LLP. This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. The Michael Simkins website is athttp://www.simkins.co.uk/default.aspx.

See the short update in the March Music Law Updates archive. This links to UK government announcements athttp://www.patent.gov.uk/media/pressrelease/2006/1402.htm and

http://www.patent.gov.uk/media/pressrelease/2005/1512.htm