Artist’s Resale Right in Latin America

ADonovan Artists Resale Right, News, Visual Arts

Maria Fernanda Mendoza, IAF Consultant for Mexico and Latin America; Fabiana Nascimento, Director of Visual Arts at Associação Brasileira dos Direitos de Autores Visuais (AUTVIS); and Maria Jose de la Fuente, Assistant Secretary of the General Director at Asociación General de Autores Del Uruguay (AGADU), present a brief overview of the situation of the Droit de Suite (Artist’s Resale Right or ARR) in Brazil, Mexico and Uruguay.

Although the ARR is recognised in the legislation of the three countries, only Uruguay collects for the benefit of visual artists. However, it is expected that the same may happen shortly in Brazil and Mexico.

 

Brazil – Fabiana Nascimento

In Brazil, the copyright of visual artists is protected by the Brazilian Author Rights Law (9810/98) and AUTVIS is the only collective management organization authorized in the country.

Despite having been founded in 2002, it was only in 2012 that the national market accepted the obligation to pay, which has since been very successful.

The collection for digital uses is being promoted at a regional level through a project that is in development, where the intention is to make a unified collection in Latin America between all the associations in the region. This is a model that already exists for music in the region and is being supported by European associations that use this model.

The Artist’s Resale Right or remuneration for resale of artistic works in Brazil was recognized in 1981, when it was incorporated into the Brazilian Author Rights Law. Since then it has been very difficult to apply this right, as it defines the charge through the difference in values (prices) between the sales of the work, which in a country that has had 6 currency changes in the last 50 years is practically impossible, and galleries and resale houses take advantage of this difficulty in order to avoid paying what is due to artists.

The text of Law 9810/98 says:

“Article 38. The author has the unwaivable and inalienable right to receive at least five per cent of the price increase that is verifiable in each resale of an original work of art or manuscript that he has sold. If the author does not receive his right to participate in the act of resale, the seller is considered to be the depositary of the amount owed to him, unless the transaction is carried out by an auctioneer, and in that case the auctioneer will be the depositary.”

Several times in the last few years changes have been proposed to modify the Brazilian Author Rights Law to establish a percentage of the final price of the resale, as is usual in countries that effectively collect that right. So far it has not been successful, but we will continue trying to change the law in favour of visual artists.

Improvements in the system and expansion of the different rights to be collected are expected to progress in the short term.

 

Mexico – Maria Fernanda Mendoza

On 23rd July 2003, after many years of fighting by the visual artists, the Federal Copyright Law of Mexico was finally reformed to include the right of remuneration for resale or Droit de Suite, in the following terms:

“Article 92 bis.- The authors of works of plastic and photographic arts shall have the right to receive from the seller a share in the price of any resale that of the same work is carried out in public auction, in a commercial establishment, or with the intervention of a merchant or commercial agent, with the exception of works of art applied”.

The law also establishes that this is an inalienable right, which is transmitted after death and extinguished 100 years after the death of the author.

Unfortunately, what at the time was celebrated by the authorial community as a great triumph for being a debt that the Mexican State had to plastic artists and photographers, to this day remains a dead letter. The law orders that the fee to which the authors would be entitled must be set by the National Institute of Copyright according to a procedure that involves attending to the proposals of the collective management societies that represent the authors and/or the associations of users, meaning the galleries and art auction houses, as well as the common uses and practices in the sector and the applicable rates in other countries for the same right.

From that date, some requests were presented by the collective management entity that were not properly addressed, so the Droit de Suite remains dormant, because there was no proposal that reconciled the interests of the two parties.

However, it seems that there is a light at the end of the tunnel because recently SOMAAP (the Mexican collective management society of plastic artists), has again requested the expedition of the rate and the authority has initiated the procedure in accordance with the rules provided for in the Regulations of the Law, to propose a provisional rate. This gives interested parties a period of 30 days to make comments. If there is no opposition, it will be proposed as a definitive rate before the end of 2021.

Needless to say, the authorial community looks forward to the recognition that visual artists deserve for their genius and creativity, so they can finally benefit from the value their works acquire over time through resale, not only in Mexico but also in the rest of the world.

 

Uruguay – Maria Jose de la Fuente

In Uruguay, the General Association of Authors of Uruguay (AGADU), a non-profit civil association founded on 26th September 1929, is the multi-repertoire collective management organization in charge of the management of the rights of national and foreign visual creators.

Through Law 17616 of 10th January 2003, which amended Law No. 9739 of 17th December 1937, the Droit de Suite obtained a new text. Not only were the rights of all authors reaffirmed and made explicit, but in the specific case of visual creators, the aforementioned right was regulated along the lines of European legislation on the subject. As a first step after the new redaction of the law, an agreement was signed between the Association of Painters and Sculptors of Uruguay (APEU) and AGADU by which APEU, in order to protect the copyright of visual artists, delegated to AGADU the management of the control, administration and collection of the corresponding fees for the works of its associates in the field of Droit de Suite, in addition to the rights of reproduction and public communication in all areas.

The reform of the law of 2003 had its point of reference, as far as the Droit de Suite was concerned, in legislations of the first order in authors’ matters, for example the provisions contained in the European Directive of Droit de Suite, in the Royal Decree of Spain and the Intellectual Property Code of France. This right is included too in article 14 of the Berne Convention, but it is also recognized in Uruguayan law of 1937.

In its original text of 1937 the percentage reached 25% of the highest value of the work. Proof of this circumstance made its application impossible. It was only in 2003, with the legal reform, that a percentage (3%) became applicable to all resales. Copyright management is not an easy subject. In the specific case of the Droit de Suite, some auctioneer houses (with some exceptions that until now have been complying with the law) refused to pay it.

In October 2004, the National Association of Auctioneers and Real Estate Brokers protested against collective management. The situation caused by the non-payment of the Droit de Suite by several auction houses determined that the Copyright Council by resolution, reaffirmed the application of the law and the legitimacy of AGADU to collect the rights corresponding to the Droit de Suite from visual artists.

In November of that same year, the National Association of Auctioneers and Real Estate Brokers, through the filing of legal appeals, questioned several aspects related to the perception of the Droit de Suite, among them, the active legitimation of AGADU. The authority refuted the arguments of the Association of Auctioneers and ruled that the appeal was not appropriate. That resolution stood firm.

After several legal actions taken by both parties, which included a criminal complaint against two of the most important auctioneers in the local market, to which they responded with an appeal of unconstitutionality that was rejected by the Supreme Court of Justice, finally, in August 2009 an out-of-court settlement was signed with the auctioneers and the debt was paid.

Actually all auction houses comply with the payments stipulated by law and although 2 years ago there were some inconveniences in the payment of the rights of works for foreign authors, they have already been corrected.

In the case of the galleries, most in Uruguay are the points of the first sale, because the modality of the relation is directly with the artist. Auction houses collect most of what is generated for resales in the country.

The biggest galleries in the market retain the percentage that the law stipulates and integrate it each time it makes a resale, however, the control that AGADU has over them does not ensure that it is fully complied with, because it relies on good faith on the statements of the Gallerists.

 

With regard to Latin America, other countries that also have Droit de Suite in their legislation are Chile, Guatemala, Costa Rica, Honduras, El Salvador, Nicaragua, Panama, Paraguay, Dominican Republic and Venezuela.