The art market has historically witnessed a marked imbalance between artists and buyers of their works, who range from galleries, auction houses, collectors or connoisseurs of art. Young, striving, aspiring artists are keen (sometimes almost desperate) to secure a gallery listing or make “that sale”, as a result of which buyers invariably dictate the terms of purchase. Art, and consequently the creativity of its authors, is thus sold at a pitiably low price, highlighting the disparity in the market.
As this article began to take shape, the authors did not want to create literature on copyright law or share one’s learning about certain provisions of the Indian Copyright Act, 1957 (the Act). A greater question arose. How does one protect India’s diverse, varied and rich art forms? How does one revive the dying arts? What is the incentive for artists to carry on the tradition of their forefathers, rather than migrating to cities to seek employment? Are all artists to suffer the fate of Van Gogh—to die worthless only to become priceless!
Artists no longer need to be subjected to the meagre amounts they received when they first sold their art work. Legislation across the world provides artists and authors (of literary, dramatic or musical works) with a right called the Droite de suite (DDS), referred to colloquially as the ‘resale royalty right’.
In French, DDS literally means the “right to follow”. It is an inalienable right (a right which cannot be assigned) of an artist to receive a share of the profit on the resale of his work. While the percentage of profit which an artist or an author can receive varies, the Indian law provides for a maximum of 10 percent share to him, provided they were the first owner of the works.
It is important to highlight and understand that legally a distinction exists between the ownership of an art work and the copyright in that work. Even after an art work is sold, the copyright in that work continues to vest with the artist. It is merely the copy of the work which is assigned or sold. To illustrate with an example, if one buys the works of Anjolie Ela Menon, then by virtue of such a purchase, one only owns that painting. Such ownership doesn’t allow the buyer to use the image for any other purpose, like printing cards etc because despite the purchase, and unless otherwise provided, the copyright in that art work continues to vest with Anjolie Ela Menon.
To use the above illustration, DDS will not apply at the time of the first sale of the painting, but if the painting were to be resold by its original purchaser, then Anjolie Ela Menon is entitled to her share of the difference between the original price and the resale price of the painting under the DDS. The right is inalienable, since the law usually stipulates (as it does in India) that an artist is entitled to his royalty rights, even if he had previously assigned his rights in the work. Further, the DDS rights are available to an artist or an author and their heirs or estate for the entire term of the copyright, which begins from the date of creation and lasts for 70 years after the death of the artist.
The DDS was first proposed in the 1860s, but it was only in 1920 that France became the first country to enact it as law. The law was introduced to ensure that the widows of the artists who died during the First World War had an income. The French government also introduced this legislation to curb the public outrage that had arisen in relation to the treatment given to the family of Jean François Millet. Millet was a renowned artist who died penniless leaving his family in a state of acute penury, despite the fact that his paintings were being sold at astronomical prices.
Today, over 50 countries recognise the right established by the DDS. California introduced relevant legislation in 1977 (but there is no US federal law), the European Union introduced a directive in 2001 and the United Kingdom in 2006. India adopted this right through an amendment to the Indian Copyright Act in 1994. And while DDS does not form a part of the bundle of minimum rights under the Berne Convention, which each member state must enact as part of its legislation, the DDS it categorised as being “aspirational”.
Interestingly, the European Union does not recognise the DDS for private sales and California does not cover auction sales. Under the EU and UK legislation, the scope of “original work” is limited and does not cover all types of copyrightable works. Contrastingly, the Indian provision found in Section 53A of the Act is worded broadly. Section 53A covers original paintings, sculptures, drawings, and original manuscripts of dramatic, literary and musical works. Currently, there are no restrictions on the applicability of this law to auctions or private sales. Thus, under Indian law on resale of any of the above stated works, an artist can claim his resale royalty. But are Indian artists aware of this right?
One can argue that the Indian art trading market being relatively new and largely disorganised is a potential reason why the DDS has not gained much importance in India. Also, given the recent popularity of buying art, most purchasers are first time buyers and one hasn’t seen much resale in the domestic market. Then there is always the practical difficulty of keeping track of private sales and monitoring their resale. The legislature on its part, even after a decade of the right being provided, has not enacted adequate guidelines for its enforcement and there are no precedents to follow.
In the final analysis, it is important to create awareness amongst artists and authors about this legislation and the rights it grants. It is only when artists are aware of such economic incentives that they will continue to follow artistic instincts and help protect India’s diverse, varied and rich art forms.
- Co authored with Ms. Komal Kalha
- First Published as the Cover Story in Halsbury Law Monthly june 2009