How does Brexit affect the Artist’s Resale Right?

Fragment from Mapping the Discordant Blues, 2020 © Paula Morison
Winner of the ACS & Slade MFA Award 2018; Courtesy of the artist

January 20, 2021

The Government of the United Kingdom (UK) has guaranteed that artists and their heirs continue to benefit from the Artist’s Resale Right (ARR) now that the UK has left the European Union.

The Artist’s Resale Right has provided an essential income for thousands of artists and artists’ estates for nearly 14 years in the UK. The amended Regulations published by the government guarantees that artists and their heirs will continue to benefit from this royalty now that the UK has left the European Union.

ACS is delighted to confirm that legislation, published by the government, safeguards ARR for the thousands of artists and artists’ estates who rely upon the royalty.

Are there any changes?

The changes are minimal. Indeed, the UK threshold remains at 1,000 EUR, the works covered, the definitions, and how ARR is calculated all appear as they did in the 2006 enactment. The only change is all references to ‘EEA’ have been replaced with ‘UK’. However, the variations in wording have no impact with regard to entitlement.

Under Article 14ter of the Berne Convention, UK nationals and nationals of countries that recognise the resale rights of UK nationals will continue to receive resale rights in the UK now that we have left the EU. This view has been confirmed by the UK’s Intellectual Property Office (IPO).

Accordingly, in line with the legislation, UK-based Art Market Professionals will continue to be liable to collect ARR on ‘all eligible secondary sales of both UK and EEA nationals’ works. ACS will continue to administer its members’ ARR in both the UK and the rest of the EEA.

This means that the practicalities of ARR, such as eligibility of artists, the types of work covered and the 1,000 EUR threshold remain the same.

Who is entitled to ARR?

All artists and artists’ estates:

within copyright (living or within 70 years of death)
of UK and EEA nationality

are eligible for a royalty payment every time their work sells on the secondary market above the ARR threshold.

What sales are eligible?

Qualifying artists will continue to receive a royalty, consisting of a percentage of the sale price of an original work of art when their work is:

sold on the secondary market in the EEA
sold by, or through the agency of, an Art Market Professional (e.g.auction house, art gallery, dealer)
sold and the sale price reaches or exceeds the sterling equivalent of 1,000 EUR (this applies to UK sales only as this amount varies throughout the EEA)

What constitutes a ‘resale’?

ARR continues to apply to all subsequent sales after the first transfer of ownership by the creator. The first transfer of ownership can be by way of a sale, gift, legacy or, in the case of bankruptcy, disposal by a personal representative or trustee.

What works does ARR apply to?

ARR continues to apply to all original pictures, collages, lithographs, sculptures, paintings, drawings, tapestries, ceramics, engravings, prints, glassware and photographs.

Origins of ARR

ARR was introduced into UK legislation on 14 February 2006 under EC Directive 2001/84 and is protected through Article 14ter of the Berne Convention and the UK Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 under the powers of the European Union (Withdrawal) Act 2018.

Forms of ARR law have existed in parts of Europe since the beginning of the twentieth century. Its origins date back to the experience of the family of the French artist Jean-Francois Millet (1814-1875) who were living in poverty following his death while his works sold for vast sums. This prompted French lawmakers to enact the first ARR legislation.

We are pleased that the government has guaranteed the rights of artists and artist’s estates in the UK. ACS will continue to work with the government to ensure that our members’ rights are protected in the future.

If you have any questions, please get in contact with a member of the team here.