Remarks by Dr. Theodore Feder, President of Artists Rights Society
What Artists Should Know, A Panel Discussion.
January 30, 2018.
What does every artist need to know? In terms of defending their copyright interests, artists need to be aware that there is an organization, namely Artists Rights Society that is dedicated to protecting and expanding artists rights, whether in regard to licensing commercial entities, or dealing with publishers, or museums.
In transactions with museums for instance, it is common for institutions acquiring a work to require the artist to sign away his or her copyright, along with the work itself. Please bear in mind that these are two separate property rights; one is the property of the physical work itself, the other is the artist’s underlying intellectual property right, namely the copyright itself. Thus, the sale or conveyance of the physical work does not carry with it the transfer of the underlying copyright, which remains with the artist, unless he or she signs it away. However, to do so deprives the artist of any downstream income that may result from the reproduction of the work, which now accrues entirely to the museum. Some collectors also seek the copyright interest as well as possession of the work of art itself..When consulted, ARS strikes this requirement from the acquisition document, and we have never seen a case when this deletion has led the Museum or a collector to back out of a purchase.
Very regrettably, artists are up against a copyright system that is somewhat stacked against them, and that was originally written around the turn of the twentieth century for authors of books in particular. The copyright act of 1909 required authors to fill out forms and pay fees to register their works with the Copyright Office. This may be doable for authors, the most prolific of whom might produce a book or two a year, and filling out one or two registrion forms, though a pain, was no great challenge. However this registration mandate devolved upon visual artists as well. An artist might create a hundred or more works a year, when you take into account studies, sketches, maquettes, and finished work.
What artist had the time, patience, and inclination to sit down and fill out the registration forms and pay the requisite fees for every work he or she created. I know of none. It used to be that if you failed to register your copyright in the U.S., and append a copyright notice every time it was reproduced, the work fell into the public domain. The situation is somewhat better today. ARS was instrumental in obtaining the passage of the Copyright Restoration Act in December of 1994. That act eliminated the brunt of the registration requirement, but regrettably, and against our opposition, it retained one significant part of it, namely that if you are suing an illicit user of your work, you need to have registered that work beforehand to obtain statutory damages, which can run as high as $150,000 per violation, far greater than simple damages that might otherwise be available.
Incidentally, registration formalities were neve required under the national legislations of most foreign countries the great majority of which are also long time signatories of the Berne Convention for the Protection of Literary and Artistic Work.
That Convention was promulgated in 1886, and the U.S. finally became an adherent of it only 103 years later in 1989, decades or even a century after it ws approved by most other nations. It is the primary international convention that prescribes fair treatment for the rights of creators. Berne specifically opposes copyright formalities, and as a result in the EU and some 60 other nations, a work is automatically protected at the instant of its creation, and there is no requirement for registration or other formalities.
ARS has advocated for the extension of the copyright term, to match the extended term then prevalent in the European Union. Fortunately the Sony Bono Copyright Extension Act of 1998 prolonged the term of U.S. copyright protection by 20 years, from the previous life of the artist plus 50 years post mortem to the current term of life of the artist plus 70 years post mortem.
ARS is currently deeply involved in trying to obtain the resale royalty for artists in the U.S. and have introduced a Bill in Congress, known as the ART Act to accomplish this. Unfortunately visual artists are the only members of the creative community in the U.S. who do not receive residual payments for the later sales of their works, as for instance do composers and lyricists, playwrights and screenwriters. The benefits derived from the resale of visual artists works presently accrue entirely to collectors, auction houses, and galleries.
All of Europe and many other nations have this right, known abroad as the “Droit de Suite”. France adopted it nearly 100 years ago, in 1920. It reserves a small percentage of every later sale of an artist’s work, by a Gallery or auction house, to the artist. The chief sponsors of ARS bill in the House of Representatives is Congressman Nadler, and in the Senate by Senator Markey of Massachusetts and Senator Baldwin of Wisconsin. It is an uphill fight, as the Congress has many other issues to contend with. There is reason to believe however that we may be more successful in the coming session of Congress.
By the way, the disparity between the commissions received by an auction house and the lack of any for the artist is striking. To put it starkly, on a twenty million dollar sale, Sotheby’s would receive a buyer’s commission of $2,557,000 plus an unknown amount of seller’s commission. The artist, who may have originally sold the work for a pittance, gets absolutely nothing in the U.S. Naturally, the more artists who get behind the Bill, or lobby their congressmen, the better, If you wish to play an active role in this effort, please contact me in the breakout session.
In closing, kindly allow me to note that there are no membership fees or dues for joining ARS, and that among our services in aiding our members through the thicket of reproduction rights is gratis legal help, provided the issue in question relates to copyright.