The Artists Resale Right (ARR) also known as droit de suite (Right to Follow), has been in operation in Ireland since June 2006. The regulations entitle artists to receive a royalty each time their work is resold by an auction house, gallery or art dealer.
To be eligible for a resale royalty the following conditions must be met:
- It must be a resale (i.e. the second or subsequent sale of the art work).
- The work must be in copyright which means the artist must be alive or less than 70 years deceased.
- The work must sell for at least €3,000.
- The work must be sold through the professional art market such as a gallery, auction house or art dealer.
How much is the royalty ?
The artist receives a certain percentage of the sale price, known as the royalty. The sale price used as the basis for collecting the royalty is the auction price (also known as the hammer price) or the transfer price received by the seller, net of tax. The royalty is based on this sliding scale:
|4 % for the portion of the sale price up to||€ 50,000|
|3 % for the portion of the sale price from||€ 50,000.01 to € 200,000|
|1 % for the portion of the sale price from||€ 200,000.01 to € 350,000|
|0.5 % for the portion of the sale price from||€ 350,000.01 to € 500,000|
|0.25 % for the portion of the sale price exceeding||€ 500,000|
|The amount of royalty may not exceed||€ 12,500|
Source: Article 4 of EU Directive 2001/84/EC
When was the Resale Right implemented?
The Resale Right came into effect across the European Union in 2006. An EU Directive (2001/84/EC) obliged all member states to introduce the right along broadly similar lines. In Ireland the law came into force on the 13th June 2006, so far as living artists are concerned. It was extended to benefit the heirs of deceased artists on Jan 1st 2012.
Works of art to which the resale right relates
‘Original works of art’ is the term used by the Directive to describe the works that attract the resale right. This would include ‘graphic or plastic art such as pictures, collages, paintings, drawings, engraving, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist himself or are copies considered to be original works of art’.
Each country can set a minimum resale price that will attract the royalty payment, but this cannot be more than €3,000. In Ireland the threshold is at the highest possible level, which discriminates against younger and less well established artists whose works sell for less than €3,000. In countries such as France and Germany the threshold is less than €1,000.
Payment of the royalty
It is only sales involving an ‘art market professional’ such as a gallery, agent or auction house which are eligible for resale royalties. The seller is the payer of the royalty but Member States can choose to require the purchaser or art dealer also to have that responsibility. For example in the UK the dealer and seller are jointly liable.
Persons entitled to receive royalties
Living artists and the heirs of artists who have been deceased for less than 70 years are entitled to the royalty payment. Entitled individuals may collect the royalty themselves or may choose to mandate a collecting society to manage the right on their behalf. Collective management is by far the most common international approach whereby a country legislates for a collecting society to manage the royalties, collecting and distributing them on behalf of all artists. This approach has not yet been adopted in Ireland. Having a collecting society manage the resale right provides numerous advantages to both artists and the art trade.
Right to obtain information
Artists, or their elected representative, are entitled to require any market professional (sellers, buyers, intermediaries, salesrooms, art galleries and art dealers) to provide information necessary to secure payment of royalties. This right to information lasts for three years after the resale.
Inalienability of the resale right
The artist’s resale right is ‘inalienable’, meaning that it can never be transferred away by the artist. This protects artists from the vulnerable position that many writers and performers find themselves in when a publisher or production company demands that they assign their copyright or waive their moral rights in a work.
The Irish Resale Right regulations are not as effective as they should be. We are campaigning to have the regulations replaced with substantive legislation which will make the right much more meaningful for artists and their heirs.