ADAGP, VISUAL ARTS & RESALE RIGHT. CISAC, Paris, 9 July 2015

Transcription

1 ADAGP, VISUAL ARTS & RESALE RIGHT CISAC, Paris, 9 July 2015

2 ADAGP Created in 1953 by artists A collecting society, managed by authors Reproduction right Communication to the public right Resale right Collective rights (private copying, reprography ) Cultural action, defense of visual artists 50 sister societies worlwide More than authors direct members members of sister societies Books, press, TV, internet, merchandising More than 30 disciplines represented

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10 RIGHTS MANAGEMENT Exclusive rights 2 types of management for exclusive rights (reproduction right and communication to the public right): 1) Work by work (lump sum or percentage) demand User autorization payment ADAGP payment Author demand demand autorization User ADAGP Author payment autorization payment 2) General agreement (TV, museums, national education )

11 RESALE RIGHT The resale right is the right for an author or his heirs 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. = specific to graphic and plastic arts

12 HISTORICAL BACKGROUND Enshrined in French Law in 1920 «The Angelus» (Jean-François MILLET)

13 HISTORICAL BACKGROUND Enshrined in French Law in 1920 «In the Auction House» (Jean-Louis FORAIN)

14 HISTORICAL BACKGROUND Enshrined in French Law in 1920 Introduced into the Berne Convention in 1948 Article 14ter (1) The author, or after his death the persons or institutions authorised by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work. (2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed. BUT NOT MANDATORY (3) The procedure for collection and the amounts shall be matters for determination by national legislation.

15 HISTORICAL BACKGROUND Enshrined in French Law in 1920 Introduced into the Berne Convention in 1948 Introduced into European Law in 2001 Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art. A harmonized legal framework in Europe (28 States)

16 HISTORICAL BACKGROUND Enshrined in French Law in 1920 Introduced into the Berne Convention in 1948 Introduced into European Law in 2001 Now recognized by more than 70 countries Algeria Australia Austria Azerbaijan Belarus Belgium Bolivia Brazil Bulgaria Burkina Faso Chile Colombia Congo Costa Rica Croatia Cyprus Czech Republic Denmark Ecuador Estonia Finland France Gabon Georgia Germany Greece Guatemala Guinea Honduras Hungary Iceland India United States Iraq Ireland Italy Ivory Coast Kazakhstan Kyrgyzstan Laos Latvia Liechtenstein Lithuania Luxembourg Madagascar Mali Malta Mexico Monaco Montenegro Morocco Netherlands New Zealand China Nicaragua Norway Panama Paraguay Peru Philippines Poland Portugal Romania Russian Federation Senegal Serbia Slovakia Slovenia Spain Sweden Tunisia Turkey Ukraine United Kingdom Uruguay Venezuela

17 HOW DOES IT WORK? Which works are concerned? works of graphic art or plastic art paintings, sculptures, drawings, engravings, prints, lithographs, photographs, tapestries, ceramics, design

18 HOW DOES IT WORK? Which works are concerned? original works of graphic art or plastic art they are made entirely by the artist; or paintings, sculptures, drawings, engravings, prints, lithographs, photographs, tapestries, ceramics, design they are copies considered to be original works of art according to professional usage incorporated into law : limited productions, signed or numbered works.

19 HOW DOES IT WORK? Which works are concerned? original works of graphic art or plastic art they are made entirely by the artist; or paintings, sculptures, drawings, engravings, prints, lithographs, photographs, tapestries, ceramics, design they are copies considered to be original works of art according to professional usage incorporated into law : limited productions, signed or numbered works. The example of sculpture: 12 copies are considered to be original works 8 copies numbered from 1/8 to 8/8 + 4 artist s proofs

20 HOW DOES IT WORK? When does resale right apply? First transfer of the work by the author Buyer Buyer Author NO RESALE RIGHT

21 HOW DOES IT WORK? When does resale right apply? Resale Seller % Buyer Author Degressive royalty rates: - 4% for the portion of the sale price up to EUR % for the portion of the sale price between EUR ,01 and EUR % for the portion of the sale price between EUR ,01 et EUR ,5% for the portion of the sale price between EUR ,01 and EUR ,25% for the portion of the sale price over EUR ,01 euros.

22 HOW DOES IT WORK? When does resale right apply? Only sales above EUR 750 are subject to resale right. Resale The total amount of the royalty may not exceed EUR Seller EUR % Buyer EUR Author x 4% (= 3200) x 3% (= 900) Degressive royalty rates: - 4% for the portion of the sale price up to EUR % for the portion of the sale price between EUR ,01 and EUR % for the portion of the sale price between EUR ,01 et EUR ,5% for the portion of the sale price between EUR ,01 and EUR ,25% for the portion of the sale price over EUR ,01 euros.

23 HOW DOES IT WORK? When does resale right apply? Why is the royalty based on the sale price and not on the profit/gain? Only sales above EUR 750 Resale The total amount of the royalty are subject to resale right. may not exceed EUR A system based on the profit made by the seller is totally impracticable and unjustified: EUR ) Art market professionals are unable (legally and commercially) to get from sellers verified information on the previous % sale price; Seller Buyer 2) The intervention of several intermediaries (authorised representative, partner galleries, auction houses ), each with his or her own confidential commission, make the global profit impossible to determine; x 4% (= 3200) EUR x 3% (= 900) 3) Many art market professionnals (especially galleries) use accounting practices to disguise what has been earned; Author Degressive royalty rates: 4) Authors shouldn t be affected by commercial strategies and tax arrangements - 4% for the portion of the sale price up to EUR set up by art dealers: the artist should always receive a royalty on the resale of - 3% for the portion of the sale price between EUR ,01 and EUR her work in the same way as the writer receives a royalty on the sale of a further - 1% for the portion of the sale price between EUR ,01 et EUR copy of her work (even if the publisher makes no profit). - 0,5% for the portion of the sale price between EUR ,01 and EUR ,25% for the portion of the sale price over EUR ,01 euros.

24 HOW DOES IT WORK? When does resale right apply? Why is the royalty based on the sale price and not on the profit/gain? Only sales above EUR 750 Resale The total amount of the royalty are subject to resale right. may not exceed EUR A resale royalty based on the profit has proved to be a failure (cf. the situation in Italy until 2001). EUR That s the reason why the European Directive has harmonised legislations on this point (recital 20) : % Seller Buyer Effective rules should be laid down based on experience already gained at national level with the resale right. It is appropriate to calculate the royalty as a percentage of the sale price and not of the increase in value x 4% (= of3200) works whose original value has increased. EUR x 3% (= 900) Author Degressive royalty rates: - 4% for the portion of the sale price up to EUR % for the portion of the sale price between EUR ,01 and EUR % for the portion of the sale price between EUR ,01 et EUR ,5% for the portion of the sale price between EUR ,01 and EUR ,25% for the portion of the sale price over EUR ,01 euros.

25 HOW DOES IT WORK? When does resale right apply? Only sales above EUR 750 are subject to resale right. Resale The total amount of the royalty may not exceed EUR Seller % Buyer Author No royalty is due when the seller has acquired the work directly from the author less than 3 years before the resale and where the resale price does not exceed EUR

26 HOW DOES IT WORK? Who has to pay? Resale Intermediary Seller % Buyer Author Resale right applies when the resale involves an art market professional as - a seller, The royalty is payable by the seller (possibly the buyer). - a buyer, But the art market professional is liable for its payment. - or an intermediary.

27 HOW DOES IT WORK? Who has to pay? Resale Intermediary Seller % Buyer Author Resale right applies when the resale involves an art market professional as - a seller, The royalty is payable by the seller (possibly by the buyer). - a buyer, But the art market professional is liable for its payment. - or an intermediary.

28 HOW DOES IT WORK? Who can enjoy it? Resale Intermediary Seller % Buyer Author Resale right can be claimed by living artists or their successors in title (for 70 years after the artist s death), on condition - the artist is (or was) European, or - the artist is (or was) a national of a country whose legislation permits resale right protection for European authors and their successors in title.

29 INTERNATIONAL Towards a universal Resale Right

30 INTERNATIONAL Towards a universal Resale Right

31 INTERNATIONAL Towards a universal Resale Right

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