France grants for the first time the benefit of the resale right to two foreign artists

Paris. At the beginning of the 20th century, the French deputy André Hesse wanted to introduce into French legislation a “food law” attached to the artist’s property rights. The anecdote would have it that it was after seeing a drawing by Jean-Louis Forain (1852-1931) representing the granddaughter of the painter Jean-François Millet living in poverty and selling flowers that the deputy had the idea of ​​this right – while the painting of his ancestor entitled The Angelus (1857-1859) had just been sold for one million francs.

Established by a law of May 20, 1920, the current article L. 122-8 of the intellectual property code provides that the resale right is “an inalienable right to participate in the proceeds of any sale of a work after the first transfer made by the author or his beneficiaries, when an art market professional intervenes as seller, buyer or intermediary” . More concretely, this right allows an author of graphic or plastic works, or his beneficiaries up to seventy years after his death, to receive a percentage of the resale price of a work when it exceeds 750 euros. .

Inherently French, this resale right has few equivalents in the world. For a long time, foreign artists could not benefit from it during resales on French soil. However, harmonization was carried out at the European level by a directive of September 27, 2001, transposed into French law by the law of August 1, 2006 through two mechanisms. In the first, foreign artists are subject to automatic reciprocity of the resale right in France if their national legislation grants this right to artists who are nationals of Member States of the European Union. In the second, foreign artists can request to benefit from the resale right on the condition that they have participated in French artistic life and resided for at least five years on French soil. Here, interested artists or their beneficiaries must submit a request to the Minister of Culture who decides after consulting a dedicated commission.

This last hypothesis is not trivial for American, Chinese or Japanese artists, whose legislation does not recognize resale rights. However, the American case is a little special since the State of California was the only one to recognize an American resale right, in 1977 through the California Resale Royalty Act. In the 2010s, the Sam Francis Foundation, the Estate of Robert Graham and the artists Chuck Close and Laddie John Dill had also filed a class action against Christie’s, Sotheby’s and eBay on the grounds that these companies systematically violated their legal obligation to pay royalties on works of art sold in California or delivered at auction by California sellers. But the United States Court of Appeals for the Ninth Circuit blacklisted the text in 2017.

Faced with the loss of a significant financial windfall, the Sam Francis Foundation therefore perhaps wanted to look at French law in order to be granted the benefit of the resale right. This is now done by a decree of October 30, 2024 according to which Sam Francis (1923-1994), “author of American nationality, is eligible for the protection provided for in Article L. 122-8 of the Intellectual Property Code”. The same day, the Japanese artist Takesada Matsutani (born in 1937) was also granted this resale right. A fair and measured solution for these two artists present on French territory and having participated in its cultural and artistic life.

Above all, these decrees are important since it would be the very first time that the Ministry of Culture expressly recognizes the benefit of the resale right to foreign artists. These therefore open the way to a new understanding of copyright which, contrary to the too often and easily conveyed idea of ​​a humanist right, is above all that of a right of the creative economy.

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