Art Law: Artist’s Resale Right After Brexit

The artist’s resale right (droit de suite) entitles artists or their heirs to a royalty in relation to secondary sales of their works, calculated as a percentage of the resale price. Some players in the London art market had seen Brexit as an opportunity to get rid of the artist’s resale right, as in their view, it put London at a disadvantage with marketplaces in the United States or Switzerland, where no such right exists.

Unlike most continental jurisdictions, UK law did not recognize an artist’s resale right until it implemented the 2001 EU Directive on the resale right for the benefit of the author of an original work of art. In the UK, the resale right came into force in 2006 for the artist, and in 2012 for the artist’s heirs. It is now clear that the artist’s resale right is here to stay (even though one still comes across headlines like Should Post-Brexit UK get rid of the Artist’s Resale Right? or Time for the UK to Ditch ARR in January 2021 editions of the UK trade press.)

The Brexit deal between the EU and the UK expressly addresses the artist’s resale right and requires the UK to retain it. The Trade and Cooperation Agreement in Article IP.13, Resale right, states:

“1. Each Party shall provide, for the benefit of the author of an original work of graphic or plastic art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.

  1. The right referred to in paragraph 1 shall apply to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.
  2. Each Party may provide that the right referred to in paragraph 1 shall not apply to acts of resale, where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed a certain minimum amount.
  3. The procedure for collection of the remuneration and their amounts shall be determined by the law of each Party.”

Article IP.13 Trade and Cooperation Agreement is similar, in scope and wording, to Article 14ter Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention is listed in Article IP.4. Trade and Cooperation Agreement as one of the international agreements to which the EU and the UK are parties and the commitment to comply with it is confirmed.

Of course, both Article IP.13 Trade and Cooperation Agreement and Article 14ter Berne Convention are far less detailed that the 2001 Directive. In particular, they do not prescribe royalty rates. Hence, it appears that the UK would be obliged, under the Trade and Cooperation Agreement, to retain the artist’s resale right as such, but would be free to modify its terms. The interesting question of course is at what point a modification of the resale right would dilute it so much that one would have to view it as observing Article IP.13 in form only but not on substance and what the consequences would be.

Photo: JEAN-FRANÇOIS MILLET – L’Angelus (Musée d’Orsay), marked as public domain, more details on Wikimedia Commons. It is said that the sale of this painting by Eugène Secrétan in 1889 let to the introduction of the droit de suite in France.


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