Statements on Introduced Bills and Joint Resolutions

Floor Speech

Mr. KOHL. Mr. President, I rise today to introduce the Equity for Visual Artists Act of 2011. This bill would enable visual artists to benefit from their copyrights in a meaningful way similar to other creators of literary and artistic works such as authors, playwrights and composers. It provides for the payment of a copyright royalty long recognized in international law to be paid at the time a work of visual art is sold at auction in the United States. Half of this royalty payment will go directly to the artists or their estate and the other half will be made available to nonprofit American art museums as an endowment to be used by them to purchase the works of living American artists so that these works may be freely enjoyed by everyone.

Like all authors, the primary legal right of an artist in his or her work is the copyright. Yet, visual artists stand alone within America's creative community in their inability to gain any significant income under existing copyright law. As an example, creators of music will collect nearly $2 billion in copyright royalty payments this year. By contrast, America's visual artists receive only a tiny amount of copyright income, primarily when their works are reproduced in publications such as museum catalogues. Visual art often generates money only when the original work itself is first sold. The vast majority of money-making sales are not by artists themselves but by collectors, dealers and auction houses who trade in their works after their first sale. Under current law artists receive no income from these sales.

For nearly 100 years international copyright law under the Berne Convention on Literary and Artistic Works, of which the United States is a party, has given artists a right to royalties each time their works are resold. However, unlike other rights protected under the Convention, individual countries are not required to recognize the artists' resale right. While over 40 other countries, including all members of the European Union, provide their artists with income from resale of their works, the United States does not. Under the Convention's reciprocity rule, these countries will only pay royalties to artists from countries that also recognize the resale right. As a result, American artists receive no money from these sales.

In 1990, Congress enacted the Visual Artists Rights Act that asked the Copyright Office to study the issue of resale royalties and report back with recommendations. The Copyright Office reported back to Congress that creation of new artworks would be encouraged by adoption of the Berne Convention provisions on resale rights, but it recommended that we wait to see whether the European Union would first require all of its member countries to join those like France and Germany who had long provided their artists with such a right. In 2001, the European Union decided to make resale royalties mandatory throughout its territory, underpinning the Copyright Office's initial conclusions about the positive effects of introducing resale rights. In 2006, the United Kingdom was the last EU country to implement its law.

In order to make the administration of a resale right as simple as possible, the bill would take 7 percent of any sale $10,000 or more from only the most public and easily accountable transactions, auction sales, and divide the amount by artists or their beneficiaries and non-profit museums to purchase American art. The legislation would apply only to sales by entities that have $25 million per year of cumulative sales of visual art. It also excludes entities that solely conduct business in online auctions over the Internet. The bill gives primary responsibility for collecting and distributing royalties to non-governmental collecting societies with oversight by the Copyright Office and reporting requirements to Congress.

This legislation is a long overdue step in fulfilling our obligation under the Berne Convention to award visual artists the benefits derived from the resale of their works, a right that literary and musical artists have enjoyed for decades. Under current law, visual artists are denied royalties for lucrative sales of their art, and this bill is a meaningful start for providing them with just compensation. It is only fair that, as stipulated by international law, visual artists profit from the appreciation in value of their work.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

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