Art and Law: Droit de suite

Publication date: 4 May 2017
When is resale right required to be paid? Who can invoke the droit de suite? Who has to pay? And what is the amount that has to be paid?

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When an artist has sold a work of art it might rise significantly in value while the artist was only paid a small price. The European legislator did not consider this reasonable and has therefore introduced resale right (droit de suite). Where the artist formerly only benefitted from the first sale of his work of art, on the basis of the resale right he is now entitled to a percentage of the sales price in each resale.

So when is the resale right required to be paid? Who can invoke resale right? Who has to pay? And what is the amount that has to be paid?

Conditions

The obligation that part of the sales price must be paid to the artist does not apply to all works of art. Resale right is only due if the following conditions are met:

  • The sale regards originals of graphic or plastic works of art, such as sculptures or paintings.
  • The author has died less than 70 years ago.
  • The sales price is at least EUR 3,000.
  • A professional art dealer, such as an auction house or art gallery, is involved in the sale as seller, buyer or agent.

The artist himself is responsible for the collection of resale right. He must do so within five years after his work of art has been sold. Many artists have outsourced the collection of resale right in the Netherlands to the foundation Pictoright, as it is difficult for individuals to monitor all art sales. Art dealers and auction houses must, in principle, state upon the request of Pictoright which of their transactions are subject to resale right. Pictoright and the artist can request information dating back up to five years.

For whom?

Only the author of the original work of art is entitled to resale right. He is not allowed to transfer the right to another person. When the artist dies, the right will be transferred to his successors. The resale right will cease seventy years after his death.

However, not all artists are entitled to droit de suite in the Netherlands. Only EEA citizens and citizens of countries with a droit-de-suite-regime for citizens of EEA countries and artists having their usual place of residence in the Netherlands can invoke resale right.

By whom?

The professional art dealer involved in the sale has to pay the resale right even if other art dealers are engaged. In auction sales, both the auction house and the art dealer have to pay the full amount.

Level of compensation?

The compensation is calculated as a percentage of the sales price according to the following scale:

 Part of the sales price (excl. VAT)

 Resale right percentage

 Up to and including EUR 50,000.- 4 %
 EUR 50,000.01 up to and incl. EUR 200,000 3 %
 EUR 200,000.01 up to and incl. EUR 350,000 1 %
 EUR 350,000.01 up to and incl. EUR 500,000 0.5 %
 Over EUR 500,000 0.25 %

The maximum compensation is EUR 12,500.

Tip for art dealers and auction houses

Resale right can be charged to the buyer or seller separately or included in the service fees or commission. If the art dealer does not negotiate this, he will have to pay the resale right himself.

More information

Would you like to learn more about the droit de suite? Would you like to know what you have to keep in mind when (re)selling of works of art? Or do you have any other questions regarding to art and law? Please contact Russell Advocaten:

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