Legal Victory by the Fundació Salvador Dalí in the Defense of the Artist’s Resale Rights

PARIS.- The Fundació Gala-Salvador Dalí announced that the High Court of Paris has upheld the claims of the Fundació Dalí and acknowledges that the Spanish State is the sole holder of the resale right on the works of Salvador Dalí. The Foundation is glad to receive such a transcendental ruling because it is not only a step forward in the defence and protection of Salvador Dalí’s rights but it also creates jurisprudence.

In a ruling passed on Friday 8 July, the High Court of Paris, upholding in its entirety the claim submitted by the Fundació Dalí and VEGAP against the ADAGP (the French collective management agency of visual artists’ royalties, which corresponds to the Spanish VEGAP), declared that Spanish law is the applicable law for determining which party is the holder of the resale right on the artworks of Salvador Dalí, and consequently acknowledged that the FUNDACIÓ DALÍ, as the manager and administrator of the royalties on Salvador Dalí’s works by delegation of the Spanish State (the artist’s testamentary heir), is the beneficiary of the resale right accruing from resales of Salvador Dalí’s works.

In 2006, the FUNDACIÓ DALÍ initiated legal proceedings in Paris against the ADAGP claiming the resale right obtained in public auctions of works by Salvador Dalí. The resale right is the right of authors and their heirs to receive from the seller a part of the price of any resale of the authors’ works in public auction, in a mercantile establishment, or with the intervention of a dealer or mercantile agent.

In its claim, the FUNDACIÓ DALÍ argued that the resale right forms part of the assets comprising Salvador Dalí’s estate, and that the determination of the beneficiary of that right is a question of inheritance law, the applicable legislation being that governing the artist’s estate, that is to say, Spanish law, which admits the transfer mortis causa of the resale right to any natural or legal person; consequently, his heir, the Spanish State, is the sole holder of this right and the sole party entitled to receive it, through the FUNDACIÓ DALÍ as the party exclusively responsible for its management and administration.

The artist’s relatives were called to the proceedings by the ADAGP but decided not to appear. However, they have to right to appeal against the ruling now passed.

Before passing judgment, the High Court of Paris addressed the Court of Justice of the European Communities to raise two prejudicial questions, the more important of the two concerning the possibility that, following Directive 2001/84/EC, France could maintain a resale right reserved solely to the legal heirs with exclusion of the testamentary heirs.

On 15 April 2010 the Court of Justice of the European Communities replied to this question in the affirmative, stating that the Directive did not oppose a provision of internal French law reserving the benefit of the resale right to the legal heirs, excluding the testamentary legatees. However, the CJEC made an implicit acknowledgement that the internal French regulations on beneficiaries of the resale right was not applicable to the inheritances of foreign artists, which were regulated by the inheritance law of their own country, as recognised in the applicable international rule regulating the matter, Article 14.ter of the Berne Convention for the Protection of Literary and Artistic Works.

The ruling of the High Court of Paris adopts precisely this argument and declares that the resale right already exists at the moment of opening of the succession, and consequently it is the national law applicable to succession which must determine the holders of that right.

Thus, the High Court has declared that, on the basis of the provisions of Article 14.ter of the Berne Convention, the sole holder of the resale right on Salvador Dalí’s works is the Spanish State, and orders the ADAGP to pay the said right to the FUNDACIÓ DALÍ as the assignee thereof.

The ruling specifically orders the ADAGP:

- To communicate to the FUNDACIÓ DALÍ and VEGAP the entirety of the information and supporting documents on the amounts received and, as the case may be, paid under the heading of resale right since 17 October 1997 (the date on which the FUNDACIÓ DALÍ joined VEGAP and the ADAGP);

- To pay to VEGAP, on account of the FUNDACIÓ DALÍ, any amounts it may have received under the heading of resale right since 17 October 1997, plus the corresponding interest since the filing of the claim;

- To pay the fees of the lawyers of the FUNDACIÓ DALÍ and VEGAP and to compensate them with the joint amount of 10,000.-euros.

Without prejudice to any appeal which may be lodged, the Court has ordered the provisional enforcement of the ruling.

The importance of this decision is twofold:

(i) On one hand, it acknowledges in favour of the Spanish State the holdership of the resale right on the works of Salvador Dalí, which right generates revenues which the ADAGP has been paying to relatives of Salvador Dalí who were not mentioned in his will, in which he instituted as his universal heir the Spanish State;

(ii) On the other hand, it acknowledges the application in France of Spanish law to the succession of a Spanish artist. This aspect goes beyond the specific case posed by the FUNDACIÓ DALÍ, since a contrary declaration by the High Court of Paris would have signified acknowledging that a country’s internal legislation may modify not only the inheritance law of another country but also the testamentary will of any person.

In the proceedings before the High Court of Paris, the FUNDACIÓ DALÍ has been represented by the lawyers designated by the Roca Junyent firm, the institution’s legal advisors.

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