Washington Journal of Law, Technology & Arts


With the explosion of the internet, social media, non-fungible tokens (“NFTs”), and blockchain technology, there has been a shift in how people consume and commercialize art, thus resulting in the increased use of digital visual mediums to create, purchase, and receive payment for visual artwork. This increase has renewed the question of whether the United States should implement a resale royalty right for visual work artists. This question is of concern, especially in this digital age where it has become more difficult for digital visual artists to receive equitable compensation for their work, like that of their musical and written counterparts, due to how the internet operates. As a result of the lack of a resale royalty right within the United States, many visual artists have been left on their own to create means by which they can receive equitable compensation for their work outside of the initial sale. The lack of governmental assistance in rectifying the inequitable compensation between visual artists and other artists under copyright law has further pushed these visual artists to find payment for their work in the digital arena. For decades, the idea of implementing a version of the droit de suite or resale royalty right for visual artists has been discarded by those in the legislative branch of the United States. While those that have opposed such a right cite the (1) lack of financial incentives for artists; (2) negative economic impact on to cost of artwork; and (3) administrative effort required to develop and maintain such a right as reasons why it would not be achievable within the United States, we have seen through the explosion and use of NFTs and blockchain technology that many of these concerns can be dismissed. This Article argues that the explosion and use of NFTs and blockchain technology to facilitate a resale royalty right amongst digital visual artists provides Congress with a proof of concept that the implementation of such a right has practical potential and could be feasible.