The Role of Black Artists in the Reconceptualization of U.S. Resale Royalty Rights

Abstract

The issue of resale royalties for artists has been a topic of contentious debate in the United States for decades. A key aspect in the consideration of this provision today rests within the evaluation of the role of Black visual artists to the U.S. art market. Between 2008 and 2021, the market for work by Black artists grew by close to 400%. While on its face, this increase appears to represent tremendous growth in the recognition of Black artists, more careful analysis reveals that there is still great inequity given the structure of the U.S. art market with respect to royalties. Resale royalties, also known as droit de suite, are recognized in legislation by more than seventy countries abroad. In practice, these provisions recognize a so-called “natural right” of artists to benefit from their work long term by providing artists with a reasonable percentage of the profits from the sale of their work in the secondary market. In the United States, the legislative implementation of droit de suite has been largely unsuccessful on both the state and federal level. In countries where droit de suite has been implemented, there is no shortage of criticism regarding the merits of the policy, as many view its shortcomings as an additional harm in the plethora of inequities faced by visual artists.

Focusing on more recent advocacy for resale royalties in the United States, there is a clear connection to the work of Black artists at the center of the conversation. Modern attempts to ensure a legal right to resale royalties have taken place through more targeted models including, but not limited to, mandatory terms for public auctions of Black art, specialized contract provisions in private art sales, and the use of Blockchain technology in the development of smart contracts. Furthermore, many successful models of securing resale royalties for artists have been developed as a result of the work of organizations committed to supporting the work of contemporary Black artists, such as the Souls Grown Deep Foundation and the Dean Collection. 

This Note will examine the unique position of Black artists in the establishment of a legal right to resale royalties in the United States and the broader implications of this effort on the enhancement of equity for all American visual artists. Part I reviews the history of droit de suite, focusing on the history of resale royalty rights in the United States and pertinent factors that have contributed to the failed implementation of droit de suite thus far. Part II analyzes the harms perpetuated by an absence of resale royalty rights for visual artists in the United States, with a particular focus on the impact on Black artists despite an increased popularity of Black art. Part III examines the methodologies through which resale royalty rights have been reframed in the United States and the consideration of Black art in particular within these models. Overall, given the various dimensions of the American art market, the primary focus will be on public art transactions; however, the merging of contractual solutions with technological advancements is presumably adaptable to private sales as well. Ultimately, this Note argues that the reconceptualization of resale royalty rights toward an approach of individual implementation presents the most promising solution for securing a legal right to resale royalties in the U.S. art market, and increasing equity in the U.S. art market for all visual artists.