Copyright Law Updates | New Proposed Legislation
February 1, 2012
Copyright Law Legislation Seeks Equity for Visual Artists and their Intellectual Property
The Equity for Visual Artists Act of 2011
S. 2000, H.R. 3688, 12/15/2011
Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, has introduced legislation designed to let visual artists share in revenues generated by the resale of their works.
The Equity for Visual Artists Act of 2011, which was also introduced in the Senate today by Senator Herb Kohl (D-WI), would set aside a royalty rate of 7% for resales in excess of $10,000 at large auction houses, half of which would go to the visual artists, and half to nonprofit art museums.
“Visual artists deserve a share in the sales and resales of their creative works,” said Nadler. “It’s important to ensure that artists are fairly compensated – even more so in difficult economic times, when normal channels of support for artists are less dependable. This legislation would help working artists and provide incentives for the creation of art by providing resale royalty rights and establishing a fund for nonprofit art museums to buy art from those artists.”
The Equity for Visual Artists Act (EVAA) of 2011 would:
• Set the royalty rate at 7%, with half of the funds for visual artists, and half to make grants to nonprofit art museums to purchase art from living artists.
• Apply only to resales in excess of $10,000 at public auction houses with more than $25 million in sales in the prior year. Resales at auction houses operating only online would be excluded.
In contrast to composers, lyricists, playwrights and screenwriters, the primary means by which visual artists support themselves is through the first sale of a physical work of art. The visual artist receives no further compensation no matter how much others earn from subsequent sales of their works.
As a result, many visual artists receive little compensation for works which may not be commercially valuable until late in life or years after their death. EVAA would end this unfairness and be in keeping with our general protection and promotion of intellectual property.
Many other countries have resale rights for visual artists, some for many years. The Berne Convention for the Protection of Literary and Artistic Works, an international agreement on copyright, provides for a resale royalty right.
The Library of Congress has come out with its own summary of the bill, as follows:
- Requires, whenever a work of visual art is sold for at least $10,000 at an auction by someone other than the authoring artist, that the entity collecting the money or other consideration pay a royalty equal to 7% of the price to a visual artists’ collecting society.
- Defines an “auction” as public sale run by an entity that: (1) sells to the highest bidder works of visual art in which the cumulative amount of such works sold during the previous year is over $25 million, and (2) does not solely conduct the sale of such visual art on the Internet.
- Requires the collecting society to: (1) distribute half of the net royalty to the artist or their successor as copyright owner, and (2) deposit the other half into an escrow account to fund purchases by U.S. nonprofit art museums of works of visual art authored by living artists domiciled in the United States.
- Establishes a copyright infringement offense for the failure of the entity collecting the money or other consideration to pay such a royalty. Subjects an infringer to the payment of statutory damages.
- Excludes works of visual art from copyright notice procedures.
- Directs the Register of Copyrights to issue regulations governing the designation and oversight of visual artists’ collecting societies.
- Requires that specified fees be paid to the Register out of the total royalty payments received by collecting societies.
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