The expression “Art Law” refers to a complex legal system  governing the circulation of art works, intellectual property, protection of the artistic heritage, and the relationship between professionals in the sector, among other aspects. Talking of Art Law, we must mention the so-called “Droit de suite” or Resale Right.

The Resale Right, introduced into the Italian legislation by the Legislative Decree 118 of 13.02.2006 and into the EU law by Directive 2001/84/EC, allows artist to receive a royalty (a percentage of the sale price) if their work is subsequently re-sold by the initial buyer.
The royalty, usually paid by the seller, is due only when an art market professional (e.g. an auction house, a gallery, an art dealer, etc.) is participating in the sale – as a buyer, as a seller or as a broker.
This royalty is collected by S.I.A.E. (Italian Society of Authors and Publishers) regardless of whether the artist is associated with the Society or not. Subsequently, the S.I.A.E. will pay the amount to the artist concerned.
Let’s examine in detail when and how this resale right applies.

The following works are subject to the Resale Right:

  • original works of visual arts such as paintings, collages, drawings, sketches, engravings, prints, lithographs, sculptures, tapestries, ceramics, glass works, photographs and original manuscripts;
  • copies of the visual arts works produced in limited numbers by the author himself or under his authority, provided numbered, signed or duly authorised by the author.

In any case, the declaration to the S.I.A.E. must be done by the professionals, regardless of whether they participate in the sale as sellers, buyers or intermediaries/brokers.
The royalty is calculated as a percentage of the price of each sale (net of VAT) and anyway can not be higher than € 12,500.00.

The exact percentage to be applied is provided by law on the basis of the following value ranges:

  • 4% for the portion of the sale price of between € 3,000.00 and € 50,000.00;
  • 3% for the portion of the sale price of between € 50,000.01 and € 200,000.00;
  • 1% for the portion of the sale price of between € 200,000.01 and € 350,000.00;
  • 0.5% for the portion of the sale price of between € 350,000.01 and € 500,000.00;
  • 0.25% for the portion of the sale price exceeding € 500,000.00.

However, the Resale Right does not apply in the following cases:

  • sales performed only by private individuals, without the participation of art market professionals as buyers, sellers or brokers;
  • the value of the art work or the manuscript in question is less than € 3,000.00 (excluding tax);
  • the professional seller has acquired the work directly from the author in the three years preceding the sale, and the price does not exceed € 10,000.00 (excluding tax). In this case, it must be remembered that the sale is presumed to be made more than three years after the purchase, unless contrary is proved by the seller;

The Resale Right is designed to benefit all Italian and EU artists and authors. The same right is granted to non-EU artists according to the principle of reciprocity, i.e. only when the law of the foreign country of origin of the non-EU artist provides the same right to Italian (EU) artists. Reciprocity is assumed by default for non-EU artists ordinarily resident in Italy.

The resale right is an inalienable right and cannot be surrendered. This right lasts throughout the author’s life and for seventy years after his/her death (in this case, of course, benefiting the lawful heirs). It also applies where the works are anonymous or signed with a pseudonym.

 

Luca Poli
Maelström Art Gallery

 

The information contained in this article are to be considered general and therefore do not replace the specific advice of a professional. The author can not be held responsible for any errors or omissions

http://www.maelstromart.it

Cover Image: Vincenzo Todaro, (un)memory 246 family, olio e acrilico su tela di juta, 200X150, 2013

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