The seller bears the royalty. A professional in the sale pays it.

The French resale royalty gives the artist a share of the price each time a work is sold after the author first transfers it. The artist cannot give this right away. It applies when an art market professional takes part in the sale as seller, buyer or intermediary. The buyer’s nationality does not matter.

Published by ArtisDomus, written by Polina Surina.

Two questions decide almost every case. Did a professional take part as seller, buyer or intermediary? And was the sale made in France, or subject to French value added tax? If both answers are yes, the royalty is due, and the code names who must pay it.

The code states its figures in euros. The United Kingdom restated its figures for the same right in sterling from 1 April 2024. So the two countries now differ in currency as well as in threshold.

Article L122-8 of the Code de la propriété intellectuelle gives authors of original graphic and plastic works a droit de suite. It covers authors who are nationals of a Member State of the European Community or of a State party to the European Economic Area agreement. It is an inalienable right to share in the proceeds of any sale after the first transfer by the author or the author’s successors. Inalienable means the artist cannot sell or give it away. It applies where an art market professional takes part as seller, buyer or intermediary.

Article R122-2 adds the conditions. The royalty is due on any sale, in any form, of an original graphic or plastic work, other than the first transfer by the author or the author’s successors. The seller, the buyer or an intermediary must take part in the sale in the course of their professional activity. And at least one of two further conditions must be met: the sale takes place in France, or it is subject to value added tax there.

One exception sits in the first paragraph of L122-8 itself, and galleries rely on it. The right does not apply if two conditions are both met. The seller bought the work directly from the author less than three years before the sale. And the sale price is no more than 10 000 euros.

Article R122-3 defines an original work as one the author made personally. Examples are pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware, photographs and plastic creations on audiovisual or digital media. Works made in a limited number of copies under the author’s responsibility also count, if they are numbered, signed or otherwise duly authorised by the author. The article then sets the limits.

Article R122-4 covers authors who are not nationals of a Member State or an EEA State. They and their successors have the right if their own country’s law gives it to authors of those States and their successors. They have it for as long as they could exercise it in their own country.

An author outside that group may still be admitted to the right without any condition of reciprocity. The author must have taken part in French artistic life during their career and been resident in France for at least five years, consecutive or not. The author applies to the minister responsible for culture, who decides after the opinion of a commission.

The third paragraph of Article L122-8 splits the question in two. The seller bears the cost of the droit de suite. The professional taking part in the sale is responsible for paying it. Where the sale is between two professionals, the seller is responsible.

Article R122-9 then names the responsible professional case by case. At a public auction, it is the voluntary sales company or the judicial auctioneer, as the case may be. In other sales, it is the professional taking part in the sale.

Where several professionals take part, the seller is responsible if acting in the course of a professional activity. Failing that, it is the art market professional who receives the buyer’s payment as intermediary. Failing that, it is the buyer, if acting in the course of a professional activity.

This order matters to a private seller who sells through a dealer. The private seller bears the cost, because the royalty is deducted from the proceeds. But the code always puts the duty to pay on a professional. If the deduction was not made, the collecting society will pursue the professional.

Article R122-6 sets the rate: 4 per cent of the sale price, as defined in article R122-5, where that price is 50 000 euros or less. Above 50 000 euros, each slice of the price is charged at its own rate.

Article R122-5 defines the price the scale applies to, and sets the floor. The price is taken net of tax: the hammer price at a public auction, and in other sales the price the seller receives. No royalty is due if that price is less than 750 euros.

Two points matter for an estate checking its statements. The base is net of tax and, at auction, it is the hammer price without the buyer’s premium. And the cap is reached at a sale price of 2 000 000 euros. At that price the five bands together produce exactly 12 500 euros, and every higher price produces the same 12 500 euros.

Article R122-10 sets two clocks. If the beneficiary asks the responsible professional for payment, the royalty must be paid within four months at most. The four months run from receipt of the request or, if the request came before the sale, from the date of the sale. If several authors made the work together, the beneficiary says so and states how they agreed to divide the royalty.

If no request is made, the second paragraph applies. The responsible professional must notify one of the collective management organisations referred to in article R122-8, by registered letter with acknowledgement of receipt. The deadline is three months after the end of the calendar quarter in which the sale took place. The notice gives the date of the sale, the name of the author and any information the professional holds about the beneficiary.

The organisation must then inform the beneficiary. If the beneficiary is not identified, it must take the steps needed to find the persons who may be entitled. It calls on other organisations if necessary and, failing that, publishes the sale by electronic or other appropriate means.

Article R122-7 explains what those organisations are. By order, the minister responsible for culture sets a list of collective management organisations able to inform beneficiaries and to receive notice of sales. To be listed, an organisation must meet three conditions. It must show the diversity of its members and the number of rights holders. It must show the qualifications of its managers and officers, judged by their professional experience. And it must describe its administrative organisation, its facilities and equipment, and its capacity to inform beneficiaries, including abroad.

The duty to inform lasts three years from the sale. Under the fourth paragraph of Article L122-8, art market professionals must give all the information needed to settle the sums due. They give it to the author, or to a collective management organisation for the droit de suite.

Article R122-11 gives the beneficiary the matching right. For three years after the sale, the beneficiary can obtain the name and address of the professional responsible for payment, and the date and price of the sale. The request goes to the persons who took part in the sale in the course of their professional activity. It must give the title, a short description and the name of the author of the work.

Article R122-12 adds a penalty: the fine for a third-class contravention, a minor offence. It applies to a professional responsible for payment under article R122-9 in three cases. The first is failing to pay a beneficiary who has requested payment under article R122-10(I). The second is failing to notify a collective management organisation under the first paragraph of article R122-10(II). The third is failing to give the beneficiary the information provided for in article R122-11(I).

The framework is the EU resale right Directive, Directive 2001/84/EC of 27 September 2001. Article 1(1) requires Member States to provide a resale right. It is an inalienable right, which cannot be waived even in advance, to a royalty based on the sale price of any resale after the first transfer by the author.

Article 1(2) applies it to all resales where art market professionals act as sellers, buyers or intermediaries. These include salesrooms, art galleries and, in general, any dealers in works of art.

Article 1(4) is the provision behind the French third paragraph: the royalty is payable by the seller. Member States may provide that one of the art market professionals other than the seller is solely liable for payment, or shares liability with the seller.

Article 4(1) sets the same five bands and the same cap. The rates are 4 per cent up to 50 000 euros and 3 per cent from 50 000,01 to 200 000. Then come 1 per cent from 200 000,01 to 350 000, and 0,5 per cent from 350 000,01 to 500 000. Above 500 000 the rate is 0,25 per cent, and the total may not exceed 12 500 euros. Article 4(2) lets a Member State raise the first band to 5 per cent, and France has not done so. Article 5 makes the sale prices net of tax.

Member States differ on the threshold. Article 3(1) lets each Member State set a minimum sale price, and Article 3(2) says only that it may not under any circumstances exceed 3 000 euros. The French figure of 750 euros in article R122-5 is well below that ceiling. It is the first number to check when comparing two countries.

Article 1(3) allows the three-year exception that Article L122-8 uses, at a resale price of no more than 10 000 euros. Article 9 is the source of the three-year information right in Article L122-8 and article R122-11.

The United Kingdom implemented the same Directive and has since restated its figures in sterling. The bands and the cap keep the same numbers under a different currency sign, but the threshold is a different figure. So the same work sold in Paris and in London produces different royalties. Check the currency before comparing the sums.

The Artist’s Resale Right Regulations 2006, S.I. 2006/346, set the same five bands, the same cap and a minimum sale price, all in euros. Regulation 3 of the Design Right, Artist’s Resale Right and Copyright (Amendment) Regulations 2023, S.I. 2023/1285, replaced each of them with a sterling figure. Regulation 1(3) brought that change into force on 1 April 2024. Under regulation 4, the change does not apply to any sale with a contract date before that day.

One more point changes who to ask. In France, article R122-9 names the responsible professional in a fixed order. Where no request is made, that professional must notify a collective management organisation within three months of the end of the quarter. Article R122-10 then makes the organisation responsible for finding the beneficiary.

This entry summarises published law and is not legal or tax advice.