You’re a visual artist. You sell a work for $1000. Over time the value appreciates. Your buyer re-sells the work for $50,000. You get nothing (except requests to speak about your work, for no money!)
There is no law permitting artists to share in “resale royalties” when their works change hands. I discuss this in Conversation #31 (Droit de Suite) in my book, Arts Law Conversations: A Surprisingly Readable Guide for Arts Entrepreneurs.  
One way around this inequity, for decades, has been using a contract at the time of sale that would require re-sellers to share proceeds with the artist. The progressive nonprofit KADIST recently posted a free template for artists wishing to take this approach. An article describing KADIST’s efforts appears here.
I think the KADIST contract template is a good start. I also think its usefulness will be enhanced when artists have it customized by their own counsel, rather than just filling it out and hoping for the best. Here are some reasons why:
  • It’s unnecessarily heavy on antiquated language. The exact same objectives could be accomplished using plain English. And with plain English the likelihood of actually signing deals increases significantly.
  • It refers to “a current TRANSFER AGREEMENT AND RECORD in the form and containing the information set forth and called for in the specimen hereunto annexed and made a part hereof…” (see what I mean about antiquated language?) — but no such specimen is provided. That could defeat the entire agreement because a buyer could argue that, without that specimen, the buyer’s reporting obligation was not sufficiently defined.
  • There’s no section specifying governing law, venue, or currency. I understand why they’re absent; this is a template that, potentially, will be used all over the world. These are gaps, though, that absolutely need to be addressed on a case-by-case basis. What if a court in State X is hearing a challenge to the contract, and the law of State X happens to provide that contractual restrictions cannot be imposed on subsequent buyers? Choosing the governing law and venue isn’t just “boilerplate.” Without careful analysis it could defeat the contract’s enforceability.
  • If there’s going to be a contract anyway, not including other matters is a missed opportunity. This would be the perfect time to clarify copyright ownership and licensing issues, moral rights, etc.
What do you think?