Resale right

Resale royalty right in the EU

In a dispute over which of Salvador Dali’s heirs is entitled to the benefits of the Community Resale Royalty, the ECJ has ruled that this is a matter for national law.

The 1709 blog has a short report here; IPKat waxes lyrical here.

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)

CAL was recently appointed to administer the absolutely inalienable artist’s resale royalty scheme under the Australian Act, Resale Royalty Right for Visual Artists Act 2009 (Cth), and Minister Garrett has announced that the scheme will come into force on 9 June 2010.

Section 15 of our Act will specify who the heirs can be – the person or person who satisfy “the succession test”:

Succession test
(1)  An entity satisfies the succession test in relation to resale royalty right on the commercial resale of an artistic work, if the entity satisfies:
(a)  criteria 1 and 2 (in subsections (2) and (3)); or
(b)  criteria 3 and 4 (in subsections (4) and (5)).
Criterion 1
(2)  The entity received its interest in the right by testamentary disposition, or in accordance with the rules of intestate succession, on the death of an individual.
Criterion 2
(3)  The entity is one of the following:
(a)  an individual with a beneficial interest in the right;
(b)  a charity or charitable institution with a beneficial interest in the right;
(c)  a community body with a beneficial interest in the right;
(d)  a person who holds an interest in the right in trust for:
(i)  an individual; or
(ii)  a charity or charitable institution; or
(iii)  a community body.
Criterion 3
(4)  The entity received its interest in the right on the winding up of a charity, charitable institution or a community body.
Criterion 4
(5)  The entity is a charity, charitable institution or a community body formed for substantially the same purposes as the body that was wound up.

Resale royalty bill

The House Committee report into this bill has now been published.

Background and potted summary here and here.

There are 9 principal recommendations including introduction of an “opt out” clause for artists,

  1. broadening of the scope of artwork covered to include “batik, weaving, or other forms of fine art textiles; installations; fine art jewellery; artist’s books; carvings; and multimedia artworks, digital and video art”;
  2. broadening of the scope of clause 8(3)(d) of the Bill be to reflect the full range of transactions involving the ‘commercial’ resale of artwork (eg the Internet);
  3. broadening of the scope of the definition of art market professional to include ‘art market dealer’, in lieu of ‘art dealer’ in order to capture other commercial operators whose primary business may not be artwork but nonetheless sell artwork from time to time
  4. to address concerns about acquisition of property on other than just terms, amendment of the bill to exclude from liability for payment the seller or alternatively exclude the bill’s operation from the first resale after the bill comes into force

and some rather novel recommendations in relation to the treatment of aboriginal or indigenous artists.

Lid dip, Copyright Council.


%d bloggers like this: