Resale rights: the Dali ruling

Yesterday, 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) and others, the Court of Justice of the European Union ruled on how the meaning of Article 6(1) of the EU's Resale Right Directive 2001/84.

The ruling was prompted by French proceedings in which the court wanted to know whether resale right royalties for French sales of Salvador Dalí's works should be payable to (i) the sole legatee appointed in the painter's will -- this being his Fundación -- or (ii) his legal heirs, as French domestic law requires. According to Article 6(1) of the Directive, Member States had to introduce the resale right by 1 January 2006, entitling an artist or, after death, "those entitled under him" to receive that royalty when their original works of art were resold. But what did "those entitled under him" mean?

According to the Court of Justice, there was nothing in Article 6(1) to stop the French limiting the benefit of the resale right to the author's heirs, even if that was to the exclusion of legatees or other successors in title. Nor was there anything in the Directive to rule out the application of rules for resolving conflict of national laws on succession. In short, it's for the referring court to take due account of all relevant rules for resolving conflicts of laws relating to the transfer on succession of the resale right.

As in the case of other IP rights and pseudo-rights, issues involving the ownership and devolution of the resale right are clearly seen in the EU as a fit subject for national law rather than for harmonisation. While testamentary disposition does not normally affect the manner in which the single market works in Europe, it can leave messy and inconvenient loose ends for heirs -- and bodies representing them -- to deal with.