I am selling a work from my collection through an auction house. Do I owe the resale right?

As the seller you are the party ultimately liable, so yes, once the proceeds exceed €3,000 and the maker died less than seventy years ago. In practice the auction house handles payment and settles it against your proceeds. Ask in advance how the auction terms deal with it, because that shows straight away whether the royalty is placed with you or with the buyer.

Is the resale right due if I rent out or lend an artwork?

No. The resale right applies only to sales. Rental, loan, exchange and gift fall outside it. Hire purchase is a form of sale, so the resale right can apply there.

Does the resale right cover photographs and prints?

Yes, provided they are originals or copies made in a limited edition by the artist or under the artist’s authority. A signed and numbered screenprint, say number 24 of 50, is covered. An unlimited reproduction is not.

Who checks whether galleries and auction houses pay the resale right?

Pictoright, acting for the artists it represents, monitors the art market and approaches professional dealers where there are signs that a royalty is due but has not been paid. The law obliges the trade to provide all relevant information. Failing to do so, or doing it incorrectly, can be unlawful.

Artist's resale right

Vincent van Gogh probably sold one painting in his lifetime, The Red Vineyard, for four hundred francs. The work became world famous and astronomically valuable only after his death. He saw none of it, and neither did his heirs, because the resale right did not yet exist.

That is what the resale right was made for. Visual artists sell originals. A writer earns on every copy sold; a painter has no further income from a work after the first sale. If it rises in value and changes hands again through a gallery or auction house, only the owner benefits. The resale right corrects that. On every resale the artist, or after their death the heirs, receives a percentage of the sale price.

This page sets out the Dutch rules. Rates and thresholds differ from one EU country to the next.

When the resale right applies on a resale

The resale right has been in the Dutch Copyright Act (Auteurswet) since 2006, in article 43a and following, implementing a European directive from 2001. Three conditions have to be met together.

It is a resale. The first sale by the artist falls outside it. The right starts running on the second and every further transfer of ownership.

A professional art dealer is involved, as buyer, seller or intermediary. Galleries, auction houses and art agents registered as such with the Dutch Chamber of Commerce certainly qualify. Two private individuals selling to each other without professional involvement owe nothing.

The sale price is at least €3,000. Below that the right does not apply. A second exception: where the seller acquired the work directly from the artist less than three years before the resale and the price is no higher than €10,000, no resale right is due.

Rates per band and the €12,500 cap

The royalty is a percentage of the sale price, calculated excluding VAT but including the buyer’s premium. The scale slides down, so the higher the price, the lower the rate on the portion above.

4 per cent on the portion of the sale price up to and including €50,000
3 per cent on the portion between €50,000 and €200,000
1 per cent on the portion between €200,000 and €350,000
0.5 per cent on the portion between €350,000 and €500,000
0.25 per cent on the portion above €500,000

The total is capped at €12,500. At a sale price of €2 million you reach that cap, and above it the amount no longer changes.

Who pays and who can be held liable

The seller is the party ultimately liable in law. If the seller does not pay, the royalty can be recovered from the buyer or the intermediary. Every professional art dealer involved in the transaction therefore carries risk.

The professional trade also has a duty to inform. The sale price, the date of sale and the identity of the parties have to be provided, because collection is impossible without them. Withholding that information, or giving it incorrectly, can amount to an unlawful act.

Collection through Pictoright

Artists can collect themselves or outsource it. Most leave it to Pictoright, the collecting society that administers resale rights in the Netherlands and represents around 2,500 Dutch and 80,000 foreign artists and their heirs.

If you work at a gallery or auction house, contact Pictoright on every resale above the threshold to check whether the artist is a member. If so, you pay the royalty to Pictoright. If not, the amount goes directly to the artist or the heirs.

Bear in mind that an artist has twenty years after the resale to claim the royalty. A forgotten sale can come back a long time later.

Exceptions to the resale right and the position of heirs

The resale right cannot be transferred. If an artist agrees in a gallery contract to waive it, that clause is void and the artist can still come back to it later.

On death the right passes to the heirs, who can exercise it until seventy years after the maker’s death. A will can also leave it to a specific person.

Cross-border transactions cause the most confusion. Every EU member state has introduced the resale right. The thresholds differ, and so do the rates and the way collection is organised. On a cross-border sale it is not always immediately clear in which country the royalty is due and which collecting society it should go to.

There is also a museum exception. Where a private individual sells directly to a not-for-profit museum open to the public, no resale right is due.

More about buying and selling artworks →

More about artist contracts with a gallery →

More about inheriting and bequeathing art →

Get in touch with Jaap Versteeg

Do you have questions about your resale right as an artist? Or do you work at a gallery or auction house and want to know what your obligations are? Get in touch with Jaap Versteeg. Call 020 675 88 21 or email him for an initial consultation.

The law of the country where the sale takes place decides whether the royalty is due and how much it is. If a Dutch collector auctions a work in Paris, the French threshold and the French rates apply.

Within the European Union that is manageable, because every member state has the resale right. Collection runs through the collecting society of the country of sale. Under reciprocal agreements that society pays through to the artist’s own society, in the Netherlands Pictoright. So as an artist or an heir you register with Pictoright, not with the foreign auction house.

Outside the EU it changes. The United Kingdom has the resale right; the United States and Switzerland do not. An auction in New York or Geneva therefore gives rise to no claim, even where the artist is Dutch.

That makes the place of sale a choice with financial consequences. If you are reselling and want to know where you stand, put the transaction to us beforehand.