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DACS discusses Artist’s Resale Right royalties for Designers

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Not Carved in Stone 2023 Ron Arad and Associates Ltd

Christian Zimmermann, DACS CEO, shares insights with Anti Copying in Design (ACID) about the role of Artist’s Resale Right (ARR) royalties in supporting creators, highlighting how these royalties empower artists by ensuring they receive a fair share of profits when their work is resold, fostering a more equitable and sustainable art market.

UK law recognises ARR as an inalienable right, which means that artists cannot assign or waive it and upon an artist’s death, ARR passes to their beneficiaries, ensuring estates can also benefit from these royalties.

Christian Zimmermann
DACS CEO

A brief history of ARR

The Artist’s Resale Right (ARR) was established in the UK in 2006 to provide artists with an ongoing stake in their work. It entitles artists and their estates to a royalty payment when their works are resold for more than £1,000 with the involvement of an art market professional (galleries, auction houses, and art dealers).

Forms of ARR have existed in parts of Europe since the early twentieth century. The concept originated from the plight of the family of French artist Jean-Francois Millet (1814-1875), who lived in poverty after his death while his works resold for large amounts of money. This situation led French lawmakers to enact the first ARR legislation better known as the droit de suite (translated to the “right to follow”).

ARR was created to ensure that artists and their beneficiaries continue to benefit financially from the trade in their works. Traditionally, artists received payment only for the initial sale of their creations, while subsequent resales (often at significantly higher prices) benefited collectors and dealers. ARR addresses this disparity by granting artists a percentage of the resale price whenever their works are resold under participation of a gallery, dealer or auction house. This ongoing financial reward helps support artists’ creative endeavours, sustains their livelihood, practice, and legacy, and acknowledges the enduring cultural and societal value of their work.

In the UK, resale royalties apply for artists’ who are nationals of the UK, Australia, or another country where the right is reciprocated, which covers most of the European Economic Area and soon New Zealand and South Korea. UK law recognises ARR as an inalienable right, which means that artists cannot assign or waive it and upon an artist’s death, ARR passes to their beneficiaries, ensuring estates can also benefit from these royalties.

The payment of ARR royalties on resales of design works aligns with the legislation’s original intent: to provide ongoing financial recognition to artists and their families. By doing so, it fosters a more equitable art market and sustains the legacy and economic well-being of artists and creators.

Christian Zimmermann
DACS CEO

Design works and ARR

Under the ARR Regulations, a ‘work’ to which ARR applies, has to be a copyright protected work of graphic or plastic art. Section 4 of the Copyright, Designs and Patents Act 1988 provides for protection of various artistic works, including sculpture and works of artistic craftsmanship, but does not specifically list designs, which are generally protected by design rights. However, many design works could also fall into the category of being a work of artistic craftsmanship or sculpture and therefore qualify for ARR if they are also a work of plastic art (being shaped or moulded when created). As many design works exist in multiples, ARR only applies if the works are of a limited number and created either directly by the designer or under their authority. Items listed in the law that qualify for protection are for example an item of glassware, ceramics and tapestries.

The application of ARR to works of design in the UK is a point of contention with some AMPs, with auction houses and galleries arguing that most works of design are neither artistic works nor works of plastic art. This is despite many design works being featured in exhibitions and art collections – such as Charles and Ray Eames, Joris Laarman or Ron Arad – underscoring their value as artistic creations, and the same pieces being sold by auction houses – sometimes for millions of pounds. Indeed Ron Arad’s work ‘Not Carved in Stone’, 2023 makes explicit reference to the notion of art and functionality. The work has engraved the Oscar Wilde quote “Art is quite useless. A work of art is as useless as a flower.”, expressing that art exists simply for its own beauty and joy and, as such, any practical use (like, in this works case, sitting on) is merely incidental and not part of its true nature nor that of the vision of the creator.

Historically, identifying works of artistic craftsmanship has been challenging in the UK and decisions in the UK courts have not brought much more clarity. However, more recent case law seems to suggest that as long as a work is original then it can qualify for copyright as a work of artistic craftsmanship. So, unlike previously, judges would no longer have to assess if there is purely an artistic appeal to the work in question. Therefore, it could be recognised as copyright protected as opposed to having predominantly utilitarian aspects, and defined as a design work. This shift has arguably widened the scope of copyright protection for works of design, which in turn will have widened the types of works that are eligible for ARR royalties. In particular, arguments about design furniture which have not been accepted by the art market to qualify under ARR because of their sometimes-functional nature, for example in the recent WaterRower case highlighting this change in approach for protection of works of artistic craftsmanship.

The inclusion of design works under ARR in the UK, despite contention from some AMPs, reflects an evolving understanding of artistic merit and originality. A broader interpretation of what constitutes a work of plastic art and artistic craftsmanship, as reinforced by recent legal cases, underscores the importance of recognising and financially supporting all forms of creative expression.

ARR's role in a fairer art market

Ultimately, the payment of ARR royalties on resales of design works aligns with the legislation’s original intent: to provide ongoing financial recognition to artists and their families. By doing so, it fosters a more equitable art market and sustains the legacy and economic well-being of artists and creators. As the art world continues to evolve, the principles underpinning ARR remain vital in affirming the enduring worth of creative works and the rights of their creators.

The article was originally published by ACID.

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