"Move over, Dali ..." -- but who's next in line for resale royalty entitlements?

Some people have unkindly suggested that the harmonised IP laws of the European Union bear the same relationship to real law as the paintings of Salvador Dalí occupy with regard to reality.

Right: Dalí was great at doing the whiskers, but he never could get cats' heads right ...

Be that as it may, Advocate General Sharpston of the Court of Justice of the European Union gave her Opinion today in Case C-518/08 Fundació Gala-Salvador Dalí, Visual Entidad de Gestión de Artistas Plásticos v Société des Auteurs dans les arts graphiques et plastiques, Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María Del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet, Mónica Busquets Bonet, this being a reference for a preliminary ruling lodged in November of last year by the Tribunal de grande instance de Paris, France.

In 1983 Salvador Dalí set up a Foundation ‘to promote, foster, disseminate, celebrate, protect and defend in Spain and in any other State the artistic, cultural and intellectual oeuvre of the painter, his property and rights of whatever nature; his life experience, his thoughts, his projects and ideas and artistic, intellectual and cultural works; his memory and the universal recognition of the genius of his contribution to the Fine Arts, to culture and to contemporary thought’. He died a widower in 1989, leaving no children or descendants but, in his will, making the Spanish State ‘universal and unconditional heir to all his property, rights and artistic creations, fervently calling upon it to preserve, disseminate and protect his works of art’. The State accepted that legacy, giving the task of administering and exploiting the rights concerned to the Ministry of Culture, which passed it on to the Foundation.

In 1997 the Foundation gave the Spanish collecting society Visual Entidad de Gestión de Artistas Plásticos (VEGAP) the exclusive mandate to exercise its rights and collect dues in respect of Dalí’s works anywhere in the world. VEGAP, which has a reciprocal representation contract with its French sister society, Auteurs dans les Arts Graphiques et Plastiques (ADAGP), asked ADAGP to manage the rights over Dalí’s works in France, with effect from 17 October 1997. Since then, ADAGP has collected and paid to VEGAP, on behalf of the Foundation, all amounts due in respect of exploitation of the artist’s works in France – with the exception of resale rights, which it, at least initially, collected on behalf of, and paid to, Dalí’s collateral heirs.

In December 2005 the Foundation and VEGAP brought proceedings against ADAGP before the Tribunal de grande instance in Paris, arguing that, under both French and Spanish choice of law rules, succession to Dalí’s movable estate is governed by Spanish law because, on his death, he was a Spanish national domiciled in Spain. The Foundation is therefore the sole beneficiary of all rights over Dalí’s works, in particular the resale right in respect of public sales.

ADAGP had not distributed any such royalties collected since the action was brought, but was prepared to pay them to whichever party or parties the French courts ruled to be properly entitled. Royalties already paid to the six collateral heirs whom it considered entitled in accordance with French law, it submitted, must be recovered if appropriate from those heirs. It therefore joined those heirs to the proceedings as third-party defendants, although none has entered an appearance.

The Tribunal de grande instance noted that France has maintained a resale right for the benefit of heirs at law alone, whereas the resale royalty right Directive specifies that it is to be payable to ‘those entitled under’ the deceased artist. Wondering whether that was permitted by the Directive, it referred the following questions to the Court of Justice of the European Union for a preliminary ruling:

1. Can France, subsequent to [Directive 2001/84 on the resale right for the benefit of the author of an original work of art], retain a resale right allowed only to the heirs to the exclusion of legatees or successors in title?

2. Do the transitional provisions of Article 8(2) and (3) of [Directive 2001/84/EC] of 27 September 2001 allow France to have a derogation?

Today the Advocate General advised the court to rule as follows:

"Directive 2001/84/EC of the European Parliament and of the Council on the resale right for the benefit of the author of an original work of art does not preclude a national rule under which, after the author’s death, entitlement to the resale right passes only to heirs at law, to the exclusion of legatees or successors in title".

Regarding the first question, the Advocate General concluded that the Directive does not define ‘those entitled under’ the artist after his or her death, but leaves that definition to national law and, by implication, to national succession law. Since differences between national legal systems which cannot be expected to affect the functioning of the internal market may be left intact, there is no uniform category of ‘those entitled’: Member States can therefore adopt or maintain any definition which cannot be expected to have such an effect. If this analysis is correct, the second question doesn't need an answer. In any event, (i) the derogations in Article 8 are expressly available to Member States which did not apply the resale right on 13 October 2001 and France, which did apply the resale right on that date, cannot benefit from them, and (ii) those derogations only allow Member States not to apply the resale right for the benefit of those entitled under the artist; they do not concern the question of application to only a restricted group of beneficiaries.

The IPKat says, this looks like the right answer to me. Merpel says, apparently trivial references like this can actually be useful in clearing away any minor uncertainties that gnaw at the mind of potential claimants -- but it would put the matter beyond doubt if every EU Directive that grants rights either states precisely who is entitled or says that it's up to each Member State to decide for itself.

More on Salvador Dalí here
The Shameful Life of Salvador Dalí here

Salvador Dalí jigsaw puzzles here