Artist’s resale right

The artist’s resale right is a royalty paid to the artist when an original work of art is resold. It is based on the sale price of any resale after the artist first transferred the work. The artist cannot give the right away or waive it, even in advance (art. 1(1), Directive 2001/84/EC). In France it is the droit de suite.

Published by ArtisDomus, written by Polina Surina.

It covers works of graphic or plastic art, such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs (art. 2). For the full UK rules, alongside the export licence question, see UK export licence and resale right. Three things about the right surprise people.

Both points are in the Directive’s definition. A clause in a purchase agreement where the artist gives up the right has no effect under the Directive.

The United Kingdom says the same in four short rules in the Artist’s Resale Right Regulations 2006. The right cannot be assigned (reg. 7(1)). Any charge on it, such as using it as security, is void (reg. 7(2)). A waiver has no effect (reg. 8(1)). An agreement to share or repay resale royalties is void, with one exception: collective management under regulation 14 (reg. 8(2)).

France says it in one word. Article L122-8 of the Code de la propriété intellectuelle gives authors a droit de suite, qui est un droit inaliénable de participation au produit de toute vente. That is an inalienable right to share in the proceeds of any sale.

The Directive applies the right to every resale where an art market professional acts as seller, buyer or intermediary (art. 1(2)). That means salesrooms, art galleries and, in general, any dealer in works of art. The seller pays the royalty. A Member State may make one of those professionals liable alone or jointly with the seller (art. 1(4)).

The United Kingdom draws the same line. A sale counts as a resale only if the buyer or the seller is acting in the course of a business of dealing in works of art. Where the sale goes through an agent, it is also enough that the agent of the buyer or the seller is so acting (reg. 12(3)(a)). France draws the line in the opening words of article L122-8. The right arises lorsque intervient en tant que vendeur, acheteur ou intermédiaire un professionnel du marché de l’art: when an art market professional takes part as seller, buyer or intermediary. The professional in the sale is responsible for payment, or the seller where the sale is between two professionals.

This is what catches people out. A sale between two private owners, with no dealer, no salesroom and no agent acting in the course of that business, falls outside the right under all three laws.