Explore Our Blog

Back to blog home
January 19, 2016

Artist resale rights are a labour issue


suan murtaughA number of Canadian creative-types are pushing for a new law which would allow artists to collect 5 percent of the profit made on the re-sale of their works.

While technically the provisions would be part of Canada’s copyright regime, such laws are really about the relationship of maker to object, and hence labour to the economy.

A similar scheme has been introduced elsewhere. In those jurisdictions, copyright law provides for a resale fee to be paid to an artist where the work is an original (or in some cases an artist multiple or art print), and the work is re-sold through a gallery or art auction. Private re-sales do not qualify under most European legislation, nor do sales to museums.

Interestingly, the European directive which sets resale framework for the European Union provides that the artist cannot sign away her rights to resale revenues. The directive describes it as:

an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.

Describing artist resale rights as “inalienable” may sound a bit high handed, but the provision is designed to address a practical problem: that many working artists have so little bargaining power that they can’t freely negotiate to keep the resale rights. The state — at least in the European Union directive —therefore forbids artists from signing those rights away.

There is a parallel between artist resale rights and minimum standards legislation like the Employment Standards Act and Part Three of the Canada Labour Code. The rights contained in the ESA are “inalienable” in the same way: a worker is not allowed to contract for less than the ESA minimums, and any clause in a contract which runs afoul will not be enforced by a court. One caveat, of course, is that the ESA has a long list of exceptions — occupations which are partially or totally excluded from its protection.

But at heart, the prohibition on contracting out of the ESA is animated by the same fear as the “inalienable” artist resale right — namely that unequal bargaining power would otherwise lead to many employees being pressured to sign away their rights.

Millard & Company specializes in employment law and has represented both employers and employees in many legal cases.

Illustration cc by Susan Murtaugh

Wrongful Dismissal

Lost your job?
We can help.

Learn More

Human Rights Complaints

Facing discrimination or harassment?
Contact us.

Learn More

Contingency Fees

Don't have the money to pay up front?
Let's talk.

Learn More

Testimonials

"It was an absolute pleasure to work with Ben Millard at Millard & Company Barristers and Solicitors. Before signing on to use his services he took the time to answer any and all questions we had so that we felt confident when choosing him to help us with our legal matter. Once we signed on, this did not change. He was always very quick to answer our questions or address our concerns. He was very quick to let us know our next moves and did not sit on anything which was well appreciated. Would recommend to anyone to use his services. Kind, courteous, and genuinely great person to deal with!"

- M. C.

"It was a great pleasure, and a great experience, for our not-for-profit organization to work with Marcus McCann to assist us to rewrite our by-laws. Marcus was professional, knowledgeable and understanding of our issues and committed to helping us to frame our new by-laws in the context of both our organization's vision, mission and values and the law as it relates to not-for-profit organizations. He was diligent, completed the work within the time frame we agreed upon, responded to phone calls and emails promptly, and was always courteous to me and my colleagues. I thoroughly recommend Marcus for any organization who needs legal assistance, particularly in developing by-laws."

- J. M.

"Within a day I was connected to Ben Millard and he walked me through the approach and compensation once he understood my circumstances. He negotiated a good deal and it was settled in less than three weeks (would have been faster except for summer holiday). He was always available for questions during the negotiation and will answer questions on any future contracts vis a vis the severance package. With Ben I know I got the best deal i could."

- T. S.

"This is the second occasion for me reaching out to Ben Millard for his employment related expertise. I greatly appreciate Ben’s clear and concise counsel. His ability to distill the relevant and important issues from all the “noise” makes working with him to be efficient and effective. I would not hesitate to recommend him for any employment law matters."

- T. W.