Named and claimed: who could benefit from Artist's Resale Rights?

What is ARR and how much can an artist earn?

Artist's Resale Rights (ARR) entitle an artist to a royalty each time a work of theirs is sold for £1,000 or more (or €1,000 if prior to 1 April 2024) on the secondary art market within the European Economic Area. The right applies to sales made through art market professionals (e.g. galleries, auction houses and art dealers). ARR is calculated on a sliding scale, with the amount of royalty decreasing in line with sale price bands, up to a cap of £12,500 for a single work.  

In the UK, ARR are managed by collecting societies, such as the Design and Artists Copyright Society (DACS), who distribute the royalties directly to artists - the total for which was over £9.4 million in 2023 alone. Like copyright, ARR subsist throughout the artist's lifetime and for 70 years after their death, so they can be a valuable asset to an artist and their estate. DACS reports that 75% of surveyed artists chose to reinvest ARR into their professional practice and studio costs, highlighting the practical importance of ARR to many UK artists. 

Who could benefit from ARR?

The person who benefits is the person who creates the work of art, i.e. the "Author", as defined in the Artist's Resale Rights Regulations 2006 (amended by The Artist’s Resale Right (Amendment) Regulations 2011 and the Design Right, Artist's Resale Right and Copyright (Amendment) Regulations 2023).

This is straightforward for solo artists, but what is the position where more than one person is involved in a work of art – and then there is a parting of ways? Who can enforce the right, and what might the position be for artists' studios, where technicians or assistants are often involved? 

How might artistic collaborators be affected?

A 'work of joint authorship' is defined as "a work created by two or more authors". In the case of joint authors, ARR is held in equal shares (or otherwise split as agreed in writing). 

There is little commentary clarifying what 'create' means in resale rights where technical collaborators are involved.  Case law in the realm of copyright, which might be extrapolated to ARR, indicates that whether someone is considered an author is fact specific.  In a dispute between two alleged authors, courts may review the creative and artistic contribution when considering studio assistants claiming joint authorship. 

In the case of Creation Records Ltd v News Group Newspapers Ltd, the subject was an album cover for Brit-pop band Oasis.  In that case, the judge considered the position where person A arranges the camera settings and all elements of a scene to be photographed, and person B is directed to press the camera's shutter release button.  There, person A 'creates' the photograph even though they are not the photographer.  In the alternative, stated the judge, if person B had 'greater input, although no complete control of the creation of the photograph' – then it might be a work of joint authorship.

Although in the French jurisdiction, such elements were at play in the more recent case of the artist Maurizio Cattelan (of duct-taped banana fame) whose gallerist was sued by Daniel Druet, a sculptor.  Druet sought to be recognised as the sole author of certain works that he had fabricated for Cattelan, but his case failed, in part, due to Cattelan's explicit instructions that Druet followed.  

Generally joint authorship cases are fact-specific and can be limited in their application for resolving litigation.  However, trying to prevent a dispute in respect of ARR is also not straightforward. Resale rights cannot be waived or assigned, so ARR cannot be contracted out of in any employment or services contract with any possible co-creators.

How might studio artists approach the issue?

Contract drafting can aim to delineate roles of technicians as assisting with actualising the artist's creative ideas and works, or assisting solely with the execution of the artist's work.  It is also worth keeping contemporaneous records and notes of the artist's instructions to assistants in the creation of the work.

There is a further, clear, guiding principle which assists. The person whose name appears on the work is presumed to be its author, with the burden falling on any person who claims otherwise. Therefore, where a name purporting to be that of the author appeared on the work at the time of its creation, the named person will, unless the contrary is proved, be presumed to be the author.  This also applies to all names on works alleged to be the product of joint authorship, in relation to each person alleged to be one of the authors.

Therefore where any artist is seeking to be the sole beneficiary of ARR, it would be worth ensuring their name alone is on works produced in the studio, and that may extend to any records or paperwork.  

How might ARR be approached in the future?

The growing digital art world raises questions about how artists can continue to benefit from ARR. Last year, DACS (along with three other creative organisations) recommended that the UK Government should introduce a private copying scheme – similar to the private copying levies that exist in 45 other countries – to compensate creators whose works are being proliferated online. DACS brought its ongoing 'Smart Fund' campaign to the Government's attention, which proposes that technology manufacturers should contribute a small portion of the sale price of electronic devices to fund artists whose content is copied and shared online. Since the launch, a letter in support of the campaign was signed by over 100 major cultural figures. DACS has also united with a number of UK visual arts organisations to put together a Call to Action for the new Labour Government to establish the Smart Fund, as well as a Freelancer Commissioner to advocate for remuneration rights of freelance creatives.

DACS has also signed the European Visual Arts Manifesto on Artificial Intelligence, which promotes responsible working practices surrounding the development of AI in order to protect visual artists. The Manifesto emphasises that artists often miss out on royalty income due to unauthorised digital reproductions and calls for better licensing solutions to allow digital artists to recoup remuneration. Although specific mechanisms are still a work in progress, there is a clear push from DACS and other collecting societies to bring ARR and other royalties into the digital art world.