As a kid, I would on occasion sell my artwork. Some said I was gifted. I composed charcoals, pen and ink, and some oil paintings. I even won a few national awards.

As my reputation grew, I was commissioned to create works of art for collectors of my work. One of the collectors commented, "I'll be able to retire by selling this painting when you become a famous artist." Until recently, I thought nothing of the comment.

The David Zwirner Gallery in New York City assisted collector Craig Robins in selling one of the paintings that he purchased by South African artist Marlene Dumas. As part of the transaction, Robins had the gallery enter into a confidentiality agreement promising not to disclose the sale. But alas, the gallery apparently did disclose the transaction (because the gallery was courting her).

Dumas responded by blacklisting Robins from purchasing any more of her paintings. Robins, in turn, recently sued the gallery for $8 million.

Copyright law attempts to provide protections to the author of works. An author or composer is able to derive substantial profit from reproduction and further distribution of the work the author or composer creates. The same is not true, however, for the visual artist. Generally, the visual artist's main source of income comes from the original work itself.

The Robins v. Zwirner case illustrates the artist's struggle to control the resale of his or her work. The moral code at work is that it seems unfair to grossly profit from the work of a living artist.

In the art world, the artist's right to resale, also known as the droit de suite, has no workable legislative framework in the United States. Currently, there is no federal law addressing this issue.

In New York, there is no legal obligation for an art owner (i.e., collector) to share the profits from the resale of work with a living artist or the artist's heirs. Only California has laws regulating an artist's resale (Cal. Civ. Code § 986), but it has proven ineffective for the simple reason that the work of art can be sold in any other state without invoking California law.

Collectors flipping artists' work for substantial profit is not a new phenomenon. In 1973, collector Robert C. Scull resold a work created by artist Robert Rauschenberg for a considerable profit (Scull bought the work for $900 and sold it at auction for $85,000). When Rauschenberg heard of this, he physically shoved the collector.

Why would he react in that way? Wouldn't Rauschenberg's future work increase in value, giving him a benefit he would otherwise not realize in his lifetime? Nevertheless, the perception among most artists is that to sell an artist's work for considerable profit while the artist is living and not share that profit with the artist is unfair.

At present, France has taken the lead on creating a legal framework for the resale rights of artists. Rooted in the ideologies of the French Revolution and Enlightenment, the droit de suite concept was first codified under French law in 1920 and later incorporated into French copyright law in 1957.

Under French law, the artist is granted similar rights as the author through copyright. A French artist is entitled to collect 3 percent of the total sales price of the artwork each time it is sold, whether at auction or by dealer. The right is inalienable and inures to the artist for his life, plus 70 years. On Sept. 27, 2001, members of the European Union mandated that its members modify their droit de suite legislation in an effort to "harmonize" the doctrine throughout Europe.

Though attempts have been made to enact droit de suite legislation in Congress, there remains no viable legal framework in the United States. Moreover, "The Copyright Office is not persuaded that there are legitimate economic interests of visual artists that would be helped by the resale royalty."

After an investigation in the matter, the Copyright Office concluded as follows:

In summary, based on its analysis or California experience with the droit de suite, the administrative record of the hearings and written comments, and independent research, Copyright Office is not persuaded that sufficient economic and copyright policy justification exists to established droit de suite in the United States. The international community is now focusing on improving artists' rights, including the possibility of harmonization of droit de suite within the European Community.

Should the European Community harmonize existing droit de suite laws, Congress may want to take another look at the resale royalty, particularly if the Community decides to extend the royalty to all its member states.

(Library of Congress Copyright Office General Counsel, Droit De Suite: The Artist's Resale Royalty: A Report of the Register of Copyright, Dec. 1992.)

What does the future hold for droit de suite? Some artists, such as Jasper Johns, see unrestricted resale as a positive event. It was reported that when Jasper Johns heard of the Rauschenberg incident, he stopped working on his artwork and popped open a bottle of champagne.

For Johns, high prices now mean even higher prices later. But for him to benefit from these private sales, they need to be open and transparent to the public, which at present they are not due to legal constructs such as confidentiality agreements.

Some claim that to enact droit de suite legislation will drive out the art market business in those jurisdictions (though such is not the case in California). It would seem an economic probability that most art dealers and collectors would sell in markets with no resale legislation.

If the United States remains the only major country without droit de suite legislation, would the art markets of Europe migrate to the United States to escape droit de suite? Perhaps, but without an effective legal framework in the United States, resale of artist's work will remain surrounded by secrecy, mistrust and blacklisting, resulting in costly lawsuits.

I have no magical solution. But I encourage my "collectors" to sell whenever they can for as much as they can. And I will make a toast and pick up my brush once again.

David Widenor, an art lawyer, can be reached at DSW@Widenor.com.