The protection of the Artist's Resale Right in Brazil

by Vinicius Vargas 

 

Generally, musicians and writers are able to monetize their works of art, by means of licensing or leasing their reproduction and transmission rights to publishers or record labels.

However, the same cannot be said about visual artists, such as painters, plastic artists and even the writers of original manuscripts, since their doings are usually unique or limited to a few exemplars – such circumstances often are, in themselves, determining factors for the added value of their works on the art market.

The arising question is: which artists can more easily monetize their works in the information society?

 

Louise Bourgeois – Maman (Spider), 1999, Long Museum (West Bund), Shanghai, 2018

Let us take the sculpture “Spider”, by Louise Bourgeois, for example. By its very nature, this work is not often reproduced, transmitted, or circulated amongst the public, resulting in little to no proceedings (royalties) for the creator, being the sculpture itself the most valuable asset associated to the artwork.

 

Photo credit: Mauricio Santana, Getty Images

Differently, the song “Girl from Rio”, by Brazilian singer Anitta, being an intangible (non-physical) artwork, is widely shared and played on virtual platforms, generating substantial royalties for the artist, and adding value to her brand/name, as well as allowing her to charge increasingly higher fees for live presentations and concerts.

It is possible to conclude that actors, singers, composers and writers generally earn their revenue much easier within the current information society, whilst plastic artists remain limited to the direct sale of their works, as opposed to proceedings earned for the reproduction or transmission of said works.

That is the very reason why the Resale Right was idealized on early 20th century in France. Jean-François Millet, a French painter, sold his “L’Angélus” painting for 1,000 francs on 1865 (around USD 100 at the time).

 

F. Millet, L'Angelus (1857-59). Source: Baidu

In 1889, fourteen years after Millet’s death, the buyer resold the painting for 553,000 francs (around USD 150,000 at the time), while Millet’s family struggled with poverty.

To mitigate such discrepancy, the French legislators passed a law establishing the droit de suite, which consists in the right of authors – or their inheritors – to earn a percentage of the added value, if an original artwork is resold with profit.

The Resale Right aims to complement, within the plastic and graphical arts, traditional property rights, allowing the claim of this “occasional right”, in the event that the artwork is resold.

In simple terms, should an artist first sell its work of art for USD 1,000 the buyer, when reselling this work of art for USD 10,000 for instance, should pay a percentage back to the original author/artists over the added value, in this case, USD 9,000.

In Brazil, Candido Portinari’s son had his Resale Right recognized on 2009, by the Brazilian Superior Court of Justice, being entitled to a percentage of the profits of his father’s artworks, which were sold in an auction.

 

C. Portinari, Coffee harvest (1958). Source: Wikiart

Nonetheless, another lawsuit filed by Portinari’s son in 2012, claiming the Resale Right for paintings that were sold by another company, was unsuccessful. The judge stated that, in that specific case, although the Resale Right was valid, it was not applicable, since there was no prove that the artworks selling implied in any profit - i.e., that their price had risen since their previous sale.

Therefore, the Resale Right is enforceable and widely recognized in Brazil, but it depends on substantial prove of profit, and it is not widespread as classic property rights – which allow artists to prohibit third parties from plagiarizing their artworks. 

Still, the droit de suite is justifiable by the very nature of the affected artworks, being especially relevant on the information society, to guarantee the just compensation of creators of original and unique works of art.