The Artist's Resale Royalty Right: Overcoming the Information Problem

Abstract

The artist's resale royalty right, commonly called the droit de suite, has proven politically popular in a diverse range of countries. Since France first codified the right into law in 1920, at least fifty countries have followed suit. To date, the United States, with the exception of California, has been notably absent from this picture. But a federal resale royalty law is now on the horizon for American artists. In December 2011, delegates in both the U.S. House of Representatives and the U.S. Senate introduced the Equity for Visual Artists Act of 2011 (EVAA), a bill which would amend the existing copyright law to include a resale royalty provision. This Article evaluates whether Congress should adopt the EVAA, or some other variation of the resale royalty right, and provides guidance to lawmakers in considering such legislation. Specifically, this Article points out that an informational deficit, which it terms the information problem, looms over the resale royalty right. Scholars and lawmakers must have access to information about sales of artwork in order to evaluate the effect and efficacy of the right in practice. Likewise, the structure of the right requires that various parties have access to information about sales in order to carry out the requirements of resale royalty laws. However, secrecy norms pervade the art market, especially in the United States, making such information difficult, if not impossible, to come by. This Article considers several possibilities for how federal lawmakers might overcome, or at least minimize, this information problem, and concludes that the most promising scheme would be one that requires parties to disclose relevant information through a registration system.