Recap and introduction

Last week, we extensively discussed takedown notices: appreciating the circumstances under which they may be granted, their validity, as well as counter notice. To find out more, read here.

This week, we discuss artist resale rights. We cover its validity, alienability, the rate of royalty sale an artist is entitled to, as well as its exceptions.  

Artist resale rights (ARR), also known as the droit de suite, refer to the legal entitlement of visual artists to receive a royalty payment each time their original artwork is resold by an art market professional (such as an auction house or gallery). 

Artist resale right was first introduced under the French Laws to ensure artists and their heirs received a share of the increasing commercial value of their artwork. It was later included in Article 14(3) of the Berne Convention for the protection of literary and artistic works. This provision was, however, optional, meaning states had the option of choosing whether to create laws to give effect to the article. In exercising this option, Kenya amended the Copyright Act of 2001 to introduce artist resale rights under section 26D of the Act.

Artist resale right gives the initial copyright owner the right to receive royalties from resale of their sold works. It is meant to ensure that artists benefit from increased value of their works. It also helps ensure that artists are not exploited by unscrupulous dealers and managers.

An artist’s resale right is absolutely inalienable. This means that it cannot be waived under any condition or circumstance. It also remains valid as long as the copyright protection subsists. It will therefore exist up to fifty years after the death of the artist or at such other time that the copyright protection expires.

The resale rights are payable at the rate of five percent of the net sale price on the commercial resale of an artwork. Additionally, the seller, the art market professional, the seller’s agent, and the buyer are jointly and severally liable to pay the resale royalty.

Resale royalty is, however, not payable in the following instances:

1. If the sale price is less than KShs. 20,000;
2. If it concerns the resale of a building, or a drawing, plan or model of a building;
3. If it is an auction for charitable purposes;
4. If the works of fine art produced are of identical copies;
5. If it concerns a manuscript of a literary, dramatic, or musical work.

Conclusion

Artist resale right is a timely inclusion in Kenya’s Copyright legal regime. It protects artists from exploitation and ensures that artists fully benefit from their artistic creations. 

In our next episode, we turn to trademarks. Stay tuned.

For assistance in drafting resale agreements or enforcements of resale rights, contact us via our contact information in the newsletter.