UK Law and Practice Contributed by: Margherita Barbagallo, Sanskriti Mohta and Nilojana Nirmalan, Dragon Argent
reinforces the artist’s claim to ownership and reminds others that the work is protected by copyright. 3.3 Resale Right The artist’s resale right (ARR), often referred to by its French name droit de suite , is a statutory right intro - duced in the UK by the Artist’s Resale Right Regula - tions 2006. It entitles artists – and after their death their beneficiaries – to receive a royalty when an origi - nal work of art is resold on the secondary market. For the right to apply, several conditions must be met. The work must be resold for a price of GBP1,000 or more, and the sale must involve an art market pro - fessional, such as an auction house, gallery or art dealer based in the UK. The artist must be a national of the UK or of a country that grants equivalent resale rights to UK nationals. The right lasts for 70 years after the end of the calendar year in which the artist dies, meaning that it can provide a continuing income stream for the artist’s estate. The royalty is calculated on a sliding scale based on the sale price, up to a maximum of GBP12,500 per sale. Responsibility for payment rests jointly with the seller and the art market professional, though in prac - tice the professional usually collects the royalty and remits it to a collecting society (such as DACS or the Artists’ Collecting Society), which then distributes it to the artist or beneficiary. Within the art law framework, the resale right is signifi - cant because it allows artists to share in the increasing value of their work after the first sale. It recognises the artist’s continuing economic interest in the com - mercial life of the artwork, even after ownership of the physical object has passed to another person. The right is inalienable, meaning that it cannot be waived or assigned, and any agreement to share or repay the royalty is void. More than 100 countries now recog - nise some form of resale right, though eligibility may depend on the artist’s nationality and on whether their home state provides equivalent protection to UK art - ists. 3.4 Using Copyrighted Images Where an artwork remains protected by copyright, permission to use its image will generally be required
unless a statutory exception applies. Obtaining per - mission involves identifying the relevant copyright owner and securing a licence that clearly covers the intended use. The rights-holder may be the artist directly, though in many cases copyright is managed by others. The art - ist’s estate may control the rights after their death, or a gallery or museum may have acquired the copyright by assignment. Increasingly, rights are also managed by collecting societies, which can grant licences on behalf of their members for certain types of use. When seeking permission, it is important to describe the intended use in sufficient detail, as this will determine the terms and limits of any licence. Key factors include whether the use is commercial or non-commercial, the format and medium of reproduction, the duration of the licence, and the territories in which the image will be used. A further complexity arises when using a photograph or digital image of an artwork. Copyright may subsist both in the underlying artwork and in the photograph itself. The photographer who took the image may hold a separate copyright in their photograph, even if they had permission to photograph the original work. This means that permission may need to be obtained from all relevant rights-holders before the image can law - fully be used. In cases where the copyright owner cannot be identi - fied or traced after a diligent search, it may be pos - sible to apply for an orphan works licence through the UK Intellectual Property Office. This scheme allows certain uses of orphan works provided the applicant has conducted a diligent search and pays a licence fee, which is held for the rights-owner should they lat - er come forward. The scheme provides a lawful route to use works that would otherwise be inaccessible due to unknown or untraceable ownership. 4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork There is no single individual or body that holds a legal “right” to authenticate an artist’s work after their
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