Resale Royalties: The Law That Pays Artists When Their Work Sells Again

On 1 July 1889, at the Paris auction of the copper magnate Eugène Secrétan's collection, bidding on a small painting of two peasants bowed in prayer climbed to 553,000 francs, a record for the time. Jean-François Millet had sold The Angelus in 1860 for 1,000 francs. He had been dead for fourteen years, and his family, by most accounts, was living in poverty while collectors traded his work at prices he never saw. Jean-Louis Forain later drew the scene that the story became: two ragged children staring at a painting through a shop window, captioned "Un tableau de papa!" — one of Papa's paintings.

What that sale started is a royalty paid to artists, and later their heirs, each time their work is resold. It now exists in more than ninety countries. It doesn't exist in the United States, home to the biggest art market of all, and the reasons why run through a shove at a New York auction and a Californian law that lasted, in practice, for a single year.

1920: France writes the right

France turned the outrage into law on 20 May 1920, creating the droit de suite — the "right to follow" a work through the market. It was framed as an inalienable right: an artist couldn't sign it away, and it passed to the artist's heirs. The Berne Convention, the international copyright treaty, eventually included it too, but only as an option, payable between countries that both recognize it. That choice shaped everything that followed. The right spread country by country rather than everywhere at once, and the countries that stayed out kept their artists out of other countries' schemes as well.

1973: a shove at Sotheby's

On 18 October 1973, the taxi-fleet owner Robert Scull and his wife Ethel sold fifty works from their contemporary art collection at Sotheby Parke-Bernet in New York, while their own drivers picketed outside, and took in more than $2.2 million. Among the lots was Robert Rauschenberg's 1958 painting Thaw, which Scull had bought from the artist for $900. It sold for $85,000. Rauschenberg, watching from the back, confronted Scull and shoved him, saying he hadn't worked so hard "just for you to make that profit."

The argument on the other side has never gone away. Stanford's John Henry Merryman, a leading scholar of art law, pointed out that Thaw's price had risen not only through Rauschenberg's later work but because dealers, collectors and critics took a risk on him before he was famous, and that a royalty rewards the artist for a gain the risk-takers created. Others have noted that royalty money tends to concentrate among a small number of well-known artists and their estates. Both points still frame the debate.

1977–2018: California's short experiment

Rauschenberg and James Rosenquist campaigned for a royalty in the United States, and California answered with the California Resale Royalties Act, in force from 1 January 1977: 5 per cent of the resale price on works selling for $1,000 or more, where the seller lived in California or the sale took place there. Enforcement was patchy for decades. In 2011 the painter Chuck Close, the artist Laddie John Dill and others sued Sotheby's, Christie's and eBay for unpaid royalties, and the lawsuits ended up dismantling the law instead.

In 2012 a federal judge struck it down as an unconstitutional burden on commerce between states. In May 2015 the Ninth Circuit Court of Appeals agreed that the law couldn't reach sales outside California, but kept it alive for sales inside the state. Then, in July 2018, the same court held that the federal Copyright Act of 1976, which took effect on 1 January 1978, overrode it: under federal law, once a work is sold, the buyer can resell it freely. The only sales still covered were those made during 1977, the single year the state law ran before the federal act took effect. The US Copyright Office had backed congressional consideration of a federal royalty in a 2013 report, and a bill, the American Royalties Too Act, followed in 2014 over strong opposition from the auction houses. No federal right has passed.

2001–2012: Europe, and then Britain

Europe went the other way. A 2001 European Union directive required every member state to pay resale royalties on a sliding scale: 4 per cent on the portion of a price up to €50,000, falling to 0.25 per cent on anything above €500,000, with no single royalty larger than €12,500. Britain adopted it in its Artist's Resale Right Regulations 2006, over warnings from London's auction houses and dealers that the cost would drive sales abroad. The right first covered living artists only, and was extended to the estates of dead artists in 2012.

The British scheme has outlasted British membership of the EU. Since 1 April 2024 it has run in sterling: royalties apply to resales of £1,000 or more through an art market professional — an auction house, gallery or dealer — on the same 4-to-0.25 per cent scale, capped at £12,500 per sale. A £200,000 sale pays the artist £6,500. The money is collected through two societies, DACS and the Artists' Collecting Society.

How the schemes compare

2010: Australia keeps it simple

Australia's scheme began on 9 June 2010, with none of Europe's bands: a flat 5 per cent on commercial resales of $1,000 or more, collected and paid out by the Copyright Agency, for the artist's lifetime and 70 years after. To avoid a retrospective tax on existing collections, the first resale of any work already owned when the scheme began pays nothing.

The results are the clearest answer yet to the concentration argument. By the end of 2023 the scheme had generated more than $14 million in royalties for more than 2,700 artists. The Copyright Agency has reported that around 65 per cent of the artists receiving royalties are Aboriginal or Torres Strait Islander, many in remote communities whose work resells through city galleries and auction houses, and in 2021 four in five royalties were between $50 and $500. The money is small per payment, but it goes to a broad and largely non-metropolitan group of artists — much broader than the critics of the idea predicted.

Where it stands today

More than ninety countries now recognize some form of resale right, according to the Intellectual Property Office of the Philippines — itself one of them. The United States is the largest exception, and since 2018 its one state experiment has effectively ended. An American artist's work can be resold at any price, any number of times, without a cent coming back.

For an artist, the practical points are these:

• Where the right exists, it's automatic but not self-collecting. Register with the collecting society that covers the country of sale, or royalties can go unclaimed.
• It applies to resales, not your first sale. It's no substitute for pricing original work properly the first time.
• Editions can count. Britain's scheme covers limited-edition prints made by or under the authority of the artist, which makes honest edition records — the kind artist's proofs and the rest of a print's marks depend on — worth keeping.
• Your contracts still matter more. A royalty arrives years later, if at all; consignment terms decide what you earn now.

This is general information, not legal advice, and the rules differ in each country. For the broader business it fits into, see building a sustainable art career.