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The latest attempt by Jerrold Nadler to introduce a legislated Art Resale Royalty in the US, the “American Royalties Too Act” appears to be going nowhere, fast. The bill's sponsors, 15 in number, are all Democrats (and mostly on the left end of the Democrats). currently has the bill at "a %2 chance of being enacted” and the results of the mid term election is likely to favour the Republicans. The end of year session is expected to be a “lame duck session …. (after which any pending bills will expire)”.

Importantly the testimony of the US Copyright Office to the Congress committee (July 15, 2014) was hardly a ringing endorsement of legislated ARR, the following is from the closing words of the Offices presentation:

"….both the formulation and application remain complex questions. The true benefits of a resale royalty are difficult to accurately quantify and there are administrative and logistical concerns that would need to be carefully considered to develop a fully functioning system in the United States. For these reasons, in our analysis, we also proposed alternative or supplementary options Congress may wish to consider as a way to support and sustain visual artists, such as the encouragement, or even oversight, of voluntary initiatives and best practices among participants in the visual art market, broader public display rights for visual artists, rental rights, and increased federal grants for the arts .”

The following is from the section of the US Copyright Office's recent "Resale royalties: an updated analysis" outlining alternative options for Congress to consider:

“…the recent and ongoing evolution of the visual art market may well counsel against a permanent legislative solution. As the market expands, both in popular appeal and in the creation of art forms that are more suitable to production in a meaningful number of copies or multiples, more artists may see benefits under the existing law. Still, Congress could pursue other safeguards, including voluntary initiatives and/or best practices. Alternatively, Congress could revisit one or more of the legislative proposals raised in the 1992 Report. We briefly consider some of these options below."

The analysis then goes on to consider alternative options such as voluntary arrangements. After outlining a number of successful US and Canadian initiatives in the area of voluntary schemes, the report acknowledges that:

''Of course, voluntary agreements remain just that."

The report then goes on to suggest that some level of congressional involvement:

"may be necessary for these [voluntary] negotiations to achieve meaningful results. The Office notes that the House Judiciary Committee has recently expressed an interest in examining the role of voluntary agreements in the intellectual property system generally, as well as the federal government’s role in furthering and recognizing such agreements. As part of that review, Congress may wish to specifically consider the ways in which it could facilitate agreements among stakeholders in the art market, or even regulate certain standards or other aspects of them..."

The chances of the US ever adopting a UK style legislated compulsory one size fits all ARR scheme, are now so low, as to be next to zero.

And that has obvious and huge implications for the international market competitiveness of the UK’s art market.

About the Author

John R Walker

John R Walker

John R Walker has been exhibiting for more than 30 years. His artworks can be found in many of Australia's major public and private collections including: the ACT Legislative Assembly, Art Gallery of...