A Tyeb Mehta painting makes headlines at art auctions selling in crores. The works of most of his contemporaries like S H Raza, M F Hussain, Jehangir Sabavalla, F N Souza also cross the crore or million mark; these being the same works that the artists had probably sold for a few thousands a couple of decades ago. Most would believe that such is the art world; after all haven’t the greats like Van Gough, Rembrandt and Monet died in near penury? The morbid joke was always that the artist commands a price for his paintings only once he is dead. The wise buyer who picks up art when the artist is not that well known stands to benefit from his investment when the artist gains popularity – it is also an investment fraught with risk and hence the buyer deserves the gains. Once it is sold, the painting belongs to the buyer to do with as he pleases, right? However, when it comes to art, things can never be so cut and dried. The artist may sell a painting but the copyright remains with him and there has always been the hankering that the artist and his heirs too need to benefit from the delayed pecuniary rewards of their work. Thus a number of countries have introduced the artist resale right or droit de suite. This right allows artists to participate financially in the resale of their original works of art. As with copyright, the duration of the resale right is usually the lifetime of the artist plus 70 years.
The droit de suite was first proposed in Europe around 1893, in response to a decrease in the importance of the salon, the end of the private patron, and to champion the cause of the “starving artist.” Historically it was prompted by the sale of the painting Angelus by Jean François Millet for 1,000 francs in 1865 and its resale just 14 years after Millet's death in 1889 by the copper merchant Secretan for 553,000 francs; while the artist’s family lived in poverty. France was one of the first countries to introduce this right. The same was regularized throughout the European Union in 2001.
The UK too has its own version of the Artist Resale Rights though they have a gradation wherein the percentage of payment to be made on resale to the artist decreases as the amount paid for the artwork increases. Thus, an artwork sold for upto £ 50,000 will command 4% but one sold for more than £ 500,000 will be entitled to only 0.25% as resale fee to the artist.
More recently, in 2009 Australia too introduced The Resale Royalty Right for Visual Artists Act 2009 which gives the creator of an artwork the right to receive a royalty when their work is resold on the commercial art market. For artworks already in existence at 9 June 2010, the royalty applies only to the second and subsequent resale after that date. The royalty is calculated as 5% of the sale price, but does not apply where that price is less than $1,000. It can be paid directly to the creator, on resales made during their lifetime and to their heirs for resales made up to 70 years after the creator’s death. The primary legal obligation to pay the royalty rests on the seller. However, in economic terms, it may effectively be passed on to the purchaser. Eligible artworks include original works of graphic or plastic art, including pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware, photographs, fine art textiles, installations, fine art jewellery, artists’ books, carvings and multi-media artworks.
Even the Philippines recognises the resale rights of artists and The Intellectual Property Code of the Philippines (Republic Act 8293) gives the author/artist or his heirs a 5-percent share in the gross proceeds of the sale or lease of the original painting, sculpture, or manuscript, subsequent to its first disposition by the creator. This right exists during the lifetime of the author or artist and fifty years after his/her death.
One would feel that a great disservice is being done to Indian artists that they are not being awarded the same rights as enjoyed by artists the world over. But the truth is that India is one of the first countries to have provided for resale rights to artists.
The Artist’s Resale Right is contained in Section 53A of the Copyright Act of 1957. Under this Section, certain artists or his legal heirs enjoy a ‘resale share right in original copies’ of their works provided that certain conditions are met. The original copies referred to in the title of the Section refer to an ‘original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work’, and to benefit from the right contemplated by this provision of the statute, the artist must have been the first owner of rights under Section 17 of the Act. The resale right says that each time a work of art is sold within the copyright period, the artist will get a share. And this period is computed as copyright term (time) plus 60 years after the death of the artist. That means if the painter/sculptor/author is alive within the ‘selling period’ he gets a percentage of the resold amount, and within 60 years after his death, his family would be entitled to a percentage each time it is resold. But if the work is commissioned, then this term would only be 60 years from the time of the first resale.
If an artwork is re-sold for over Rs10,00, the exact share which would be payable to the artist or his legal heirs would, according to the statute, be fixed by the Copyright Board whose decision would be final. The statute also empowers to Board ‘to fix different shares for different classes of work’ although it stipulates that the share may not ‘exceed ten per cent of the resale price’ in any case. Finally, according to Section 53A(3) of the Act, any dispute relating to the Artist’s Resale Right is to be ‘referred to the Copyright Board whose decision shall be final’.
The issue is not the provision for the resale right but rather the ignorance of its existence. Even an artist of Tyeb Mehta’s calibre is said to have remarked about the auction of his paintings in millions, “Kash hamare paas bhi resale right hota.” (If only we, in India, too hade resale rights). Despite its existence for more than 50 years , reportedly, not one artist has even applied for his resale rights. No gallery, or auction house, has gone on record to say it has made a payment on a secondary sale to the artist in question.
Of course there will be numerous hurdles faced with artists demanding their rights and the manner in which the same will be provided to them. The best way of organising it would be to appoint a collection agency which will track sales and collect the percentage due to artists on resale of works. The same is currently in practice in the UK. However, the collection of the resale fee aside, the Herculean task will be not only to mobilise the artists and their heirs in recognising and demanding their rights but also to ensure that the major players in the art business, auction houses, galleries and dealers, accept resale rights as part of their business dealings.
- Razvin Namdarian