Resale rights for artists: where there's a will ...

The Court of Justice (Third Chamber) has just rendered its ruling in Case C‑518/08, Fundación Gala-Salvador Dalí and Visual Entidad de Gestión de Artistas Plásticos (VEGAP) v Société des auteurs dans les arts graphiques et plastiques (ADAGP), Juan-Leonardo Bonet Domenech, Eulalia-María Bas Dalí, María del Carmen Domenech Biosca, Antonio Domenech Biosca, Ana-María Busquets Bonet and Mónica Busquets Bonet [the Kat he hopes he hasn't left anyone out], a reference for a preliminary ruling from the Tribunal de grande instance de Paris of 29 October 2008.

Right: try as he might, Dali could never get his whiskers to grow straight ...

In short, the fabled Spanish painter Salvador Dalí died in Spain in January 1989, leaving five heirs at law. By his will he appointed the Spanish State as sole legatee, within the meaning of the French law of succession, of his intellectual property rights. Those rights are administered by the Fundación Gala‑Salvador Dalí, a foundation established under Spanish law, created in 1983 at the initiative and under the control of the painter. In 1997 the Fundación granted VEGAP, a society under Spanish law, an exclusive worldwide mandate to manage collectively and exercise copyright over the works of Salvador Dalí. VEGAP's French counterpart, ADAGP, was responsible for the management of Salvador Dalí’s copyright in France.

Since 1997 ADAGP collected amounts in respect of the exploitation of Salvador Dalí’s works, which were transferred by VEGAP to the Fundación. Sums received in respect of the artist's resale right, payable under Directive 2001/84 on resale rights, were not however transferred. Complying with Article L. 123‑7 of the French Intellectual Property Code (IPC), which reserve the benefit of the resale right to the heirs alone, to the exclusion of legatees and successors in title, ADAGP paid the the resale right receipts directly to Salvador Dalí’s heirs.

The Fundación considered that, under Salvador Dalí’s will and Spanish law, the royalties levied on sales at auction of the artist’s works in France should be paid to it and accordingly sued ADAGP in France for payment of those royalties. ADAGP requested that the painter’s heirs be joined so that the judgment to be given would be applicable to them too. Before deciding the case, the Tribunale de grande instance de Paris needed guidance as to whether Article 6(1) of Directive 2001/84 must be interpreted as precluding a provision of national law, such as Article L. 123‑7 of the IPC, which reserves the benefit of the resale right to the artist’s heirs at law alone, to the exclusion of testamentary legatees. Accordingly it decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

‘1. Can [the French Republic], subsequent to Directive [2001/84], retain a resale right allowed only to 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] allow [the French Republic] to have a derogation?’

The Court of Justice has ruled today as follows:

"Article 6(1) of Directive 2001/84 ... must be interpreted as not precluding a provision of national law, such as the provision at issue in the main proceedings, which reserves the benefit of the resale right to the artist’s heirs at law alone, to the exclusion of testamentary legatees. That being so, it is for the referring court, for the purposes of applying the national provision transposing Article 6(1) of Directive 2001/84, to take due account of all the relevant rules for the resolution of conflicts of laws relating to the transfer on succession of the resale right".

In the light of this reply, the Court observed that it was unnecessary to reply to the second question.

The IPKat notes that matters such as testamentary disposition and inheritance of copyright rarely give rise to problems concerning the exercise of IP monopolies in the single European market and are likely to remain firmly within the basket of issues that will not be harmonised along with the main economic bits of IP law.

Dali's favourite cat here.

Dali with flying cats here.