The artist's resale royalty right, commonly called the droit de suite,
has proven politically popular in a diverse range of countries. Since
France first codified the right into law in 1920, at least fifty countries
have followed suit. To date, the United States, with the exception of
California, has been notably absent from this picture. But a federal
resale royalty law is now on the horizon for American artists. In
December 2011, delegates in both the U.S. House of Representatives
and the U.S. Senate introduced the Equity for Visual Artists Act of
2011 (EVAA), a bill which would amend the existing copyright law to
include a resale royalty provision.
This Article evaluates whether Congress should adopt the EVAA,
or some other variation of the resale royalty right, and provides
guidance to lawmakers in considering such legislation. Specifically,
this Article points out that an informational deficit, which it terms the
information problem, looms over the resale royalty right. Scholars and
lawmakers must have access to information about sales of artwork in
order to evaluate the effect and efficacy of the right in practice.
Likewise, the structure of the right requires that various parties have
access to information about sales in order to carry out the requirements
of resale royalty laws. However, secrecy norms pervade the art
market, especially in the United States, making such information
difficult, if not impossible, to come by. This Article considers several
possibilities for how federal lawmakers might overcome, or at least
minimize, this information problem, and concludes that the most
promising scheme would be one that requires parties to disclose
relevant information through a registration system.
