Moral rights, resale right and catalogue raisonné: what an artist's heirs receive

Three rights, three rules of devolution

The French Intellectual Property Code does not pass on moral rights, economic rights and the resale right under the same rule. A child, a spouse, a universal legatee who is not an heir and a foundation therefore do not hold the same rights, even when they receive works. The table below summarises the position where the artist made no particular provision, unless stated otherwise.

The resale right cannot be assigned or given away inter vivos: it is inalienable (CPI, art. L. 122-8). On death it devolves by operation of law on the heirs, subject to the spouse's usufruct, and the artist may also bequeath it (CPI, art. L. 123-7). Where there is no heir, no legacy of the resale right and no universal legatee, it passes to the holder of the moral rights (CPI, art. L. 123-7). For the estate as a whole, see artist estates in France.

Moral rights never die, but they change hands

• Respect for the name, the authorship and the work. This right is attached to the artist's person, perpetual, inalienable and imprescriptible. It passes on death to the heirs, and its exercise may be conferred on a third party by will (CPI, art. L. 121-1). The heirs use it against a reproduction that distorts the work, a wrong attribution or a presentation that betrays it.
• Disclosure of posthumous works. It belongs first, for their lifetime, to the executors appointed by the artist. Failing them or after their death, and unless the artist decided otherwise, it passes to the descendants, then to the spouse who is neither judicially separated by a final judgment nor remarried, then to the other heirs, then to the universal legatees or donees of all future property. It survives the expiry of the economic rights (CPI, art. L. 121-2).
• Abuse and deadlock. In the event of manifest abuse in the use or non-use of the right of disclosure, conflict between the artist's representatives, no known rights holder, vacancy or escheat (déshérence), the judicial court may order any appropriate measure, on application in particular by the Minister of Culture (CPI, art. L. 121-3).
• What moral rights do not give. They do not make the holder the owner of the works and do not, in themselves, confer any legal monopoly over authentication. Ownership of the paintings, moral rights and economic rights may belong to different people.

The Civil Code executor and the executor the artist appoints for moral rights have neither the same mission nor the same duration: the pillar explains this in moral rights and economic rights.

Reproduction, publishing, licensing: seventy years of economic rights

During their lifetime the artist has the exclusive right to exploit the work in any form. On death, this right continues for the benefit of the rights holders for the current calendar year and the following seventy years (CPI, art. L. 123-1). This is the rule for the work of an identified author, subject to works of joint authorship, pseudonymous, anonymous or collective works and to the extensions for the war periods and for authors who died for France. A posthumous work disclosed within that period belongs to the rights holders; disclosed after it has expired, it gives a twenty-five-year right to the owner of the work who publishes it (CPI, art. L. 123-4). These are the reproduction rights (books, posters, merchandise) and the performance rights (screening, broadcasting), which the heirs exercise or license.

A surviving spouse who is not judicially separated by a final judgment has, whatever the matrimonial regime and in addition to their inheritance rights, a usufruct over the economic rights the artist did not dispose of; it is reduced where there are forced heirs and ends on remarriage (CPI, art. L. 123-6). Contracts already signed by the artist (publishing, gallery, licences) continue to apply: listing the contracts in force is the first task after death.

On every resale through a professional, a percentage goes to the heirs

• Sales covered. Any sale of an original work of graphic or plastic art after the first transfer by the artist or their successors, where an art market professional acts as seller, buyer or intermediary, if the sale takes place in France or is subject to French VAT (CPI, art. L. 122-8 and R. 122-2). It benefits artists who are nationals of the European Union or the European Economic Area and their successors; others benefit on a reciprocity basis or, on application, if they have resided in France for at least five years and taken part in French artistic life (CPI, art. L. 122-8 and R. 122-4). Original works include limited editions: twelve casts for a sculpture edition and thirty prints for a signed photograph, for instance (CPI, art. R. 122-3).
• Threshold and exception. Nothing is due if the price net of tax is below EUR 750 (CPI, art. R. 122-5), nor where the seller bought the work directly from the artist less than three years before the sale and the sale price does not exceed EUR 10,000 (CPI, art. L. 122-8).
• Who pays. The resale right is payable by the seller. The professional involved is liable for it: at public auction, in the words of the text, the voluntary auction company or the judicial auctioneer (commissaire-priseur judiciaire); in other sales, the professional seller, failing that the intermediary who receives payment, failing that the professional buyer (CPI, art. L. 122-8 and R. 122-9).
• How it reaches the heirs. An heir may claim payment directly from the liable professional, who must pay within four months of the claim, or of the sale if the claim came first. Without a claim, the professional notifies the sale, by registered letter with acknowledgement of receipt and no later than three months after the end of the calendar quarter, to a collective management organisation on the list set by the Minister of Culture, which informs the beneficiaries (CPI, art. R. 122-7, R. 122-8 and R. 122-10). ADAGP is a collective management organisation for the graphic and plastic arts; entrusting collection to such a body is the heirs' choice, not a statutory requirement.
• Checks. For three years after the sale, the beneficiary may obtain from the professionals involved in the sale the name and address of the liable professional and the date and price of the sale, and from the latter copies of the documents proving payment or, failing that, the notice given to the collective management organisation (CPI, art. R. 122-11). Failure to pay or to inform is a third-class petty offence (CPI, art. R. 122-12). The Code sets no specific limitation period for the resale right claim: failing one, the ordinary five-year period running from when the heir knew or should have known of the sale appears to apply (Civil Code, art. 2224).

A work sold for EUR 1 million: EUR 10,000 of resale right

A painting by an artist who died twenty years ago is sold at auction in Paris for a hammer price of EUR 1,000,000. The resale right is calculated in bands on the hammer price net of tax (CPI, art. R. 122-5 and R. 122-6).

The EUR 12,500 cap per work is reached at a price of EUR 2,000,000: above that, the resale right no longer increases. The EUR 10,000 is owed by the seller, the auction house is liable for it, and it goes to the heirs according to their rights: with two children inheriting in equal shares and no spouse, EUR 5,000 each, in principle subject to French income tax as non-commercial profits, and outside the scope of VAT. Where a surviving spouse holds the usufruct, the statute sets no key for splitting each payment between usufructuary and bare owners: it must be worked out from the statutory usufruct, the will and the forced-heirship reserve, then recorded in writing.

The catalogue raisonné is not a right of the heirs, but it depends on them

No statute reserves to the heirs the drafting of the catalogue raisonné or the issue of opinions on authenticity. An art historian, a gallery or a committee may compile it. The Cour de cassation holds that the refusal by the author of a catalogue raisonné to include a work, even an authentic one, cannot be treated as wrongful in the absence of a specific statute (first civil chamber, 22 January 2014, no. 12-35.264). Outside that case, the liability of anyone who gives a view on attribution is a matter for the general law and depends on the circumstances.

In practice, however, it is the heirs who hold the archives (notebooks, studio photographs, sales records) without which no serious catalogue is possible. Their position is strong, provided it is organised.

• Separate in writing the holder of the moral rights, the author of the catalogue and the body that issues opinions, with rules on referral, timing and reasons.
• Decide who keeps the archives, on what terms researchers may consult them and how they are digitised.
• Fund the catalogue through economic rights, the resale right or an endowment, over the long term.

On disputes arising from a refusal, see refusal of a certificate of authenticity. To place archives and rights in a lasting structure, see foundation and endowment fund for an art collection.

Inheritance tax, income tax, VAT

• In the inheritance tax return. Economic rights are intangible assets of the estate. French law sets no statutory valuation basis for them, unlike works of art (CGI, art. 764) or listed shares: they are declared at market value on the heirs' detailed estimate, subject to review by the tax authorities (CGI, art. 666 and 758; BOI-ENR-DMTG-10-40-10-10 and BOI-ENR-DMTG-10-40-10-40). The firm bases that value on the contracts in force, the royalty history and the remaining term of protection. Moral rights are inalienable and cannot be sold, so in principle they have no market value to declare.
• Sums received afterwards. Copyright income received by heirs or legatees is taxed as non-commercial profits (CGI, art. 92, 2, 2°). The list in that article is not exhaustive: it covers the heirs of a painter or sculptor (BOI-BNC-CHAMP-10-10-20-20, § 10 and 50). The salary-type regime of article 93, 1 quater of the CGI refers, by its wording, to sums received by authors themselves.
• VAT. Heirs, legatees and a spouse with the usufruct who receive economic rights are liable for VAT, subject to the French VAT exemption scheme (franchise en base) where its conditions are met; co-heirs may be treated as a de facto partnership, one of them collecting and paying the tax for all (BOI-TVA-CHAMP-10-10-60-20, § 70 and 90). Sums received under the resale right are not subject to VAT (same BOI, § 175).

The works themselves follow their own valuation and payment rules (studio stock, payment in instalments, dation): see valuing the studio and dation in payment of artworks.