ABOUT THE AUTHOR: Richard Frimston TEP is a
Partner at Russell Cooke LLP and Chairman of the STEP Cross Border
Estates Group
The late Bank of England Governor, Eddie George, famously
remarked that there were three sorts of economists; those who can
count and those who can’t. Similarly it is well known that there
are two varieties of property lawyer; intellectual ones and the
other sort.
For private client practitioners, intellectual property (IP)
becomes ever more important. IP becomes more valuable and more
commonplace as wealth and the economy dematerialise. However, the
situs of intangible movable property is always a matter that shows
up the differences between legal systems. If a copyright is the
right to sue someone who copies your work, then the situs of it
will be in each jurisdiction where litigation is necessary. Dealing
with probate in every jurisdiction to enable copyright to be
enforced is clearly to be avoided where possible.
The EU Directive 2004/48/EC of 29 April 2004 on the enforcement
of intellectual property rights is an example of the EU attempting
to simplify such enforcement.
In addition to copyright, royalties, trade marks and patents,
the EU introduced the concept of Artists Resale Rights (commonly
referred to as ‘droit de suite’ by auction houses and dealers) by
way of an earlier Directive, 2001/84/EC of 27 September 2001. In
the UK this was implemented by the Artist’s Resale Right
Regulations 2006 SI 2006 No. 346. Artists now have the right to a
sum like a royalty on the resale of one of their works.
Initially, the rights were not to apply to the estates of
deceased artists (and only for 70 years after death) until 1
January 2010. Practitioners may not have spotted that the
application to deceased estates in the UK was deferred in October
2009 by two years until 1 January 2012 by virtue of the
Artist’s Resale Right (Amendment) Regulations 2009 No.
2792.
For those practitioners, who are less directly affected by local
EU issues, do bear in mind that the rights also apply to numbers of
non EU nationals including from such diverse states as Brazil,
Iraq, Russia and Turkey.
The April 2010 European Court of Justice (ECJ)decision of
Fundación Gala-Salvador Dalí, Visual Entidad de
Gestión de Artistas Plásticos (VEGAP) v Société des
auteurs dans les arts graphiques et plastiques (ADAGP),
Juan-Leonardo Bonet Domenech, C‑518/08 is an example of
the interaction of succession law with the Artists Resale Rights as
enacted in France.
The situs of intangible movable property is always a
matter that shows up the differences between legal
systems
Salvador Dalí died on 23 January 1989 in Spain, leaving five
heirs at law. By will dated 20 September 1982, he had appointed the
Spanish State as sole legatee, within the meaning of the French law
of succession, of his intellectual property rights. Those rights
are administered by the Fundación Gala‑Salvador Dalí, a foundation
established by Dali under Spanish law in 1983.
Under Article L. 123‑7 of the French Intellectual Property
Code, which was not amended by the transposition of Directive
2001/84: ‘After the death of the author, the resale right referred
to in Article L. 122‑8 shall pass to the author’s heirs and in
usufruct – provided for in Article L. 123‑6 – to his or her
spouse, to the exclusion of any legatees and successors in title,
for the remainder of the year of the author’s death and the next 70
years thereafter.’
Under Spanish law the rights belong to the Fundación. Under
French law they belong to the five heirs. Was France permitted to
restrict the persons entitled to French resale rights to heirs
only?
The ECJ held that the Directive on the artists’ resale right
does not preclude a national law, which reserves the benefit of the
resale right to the artist’s heirs only, to the exclusion of
testamentary legatees. However, it also stated that it is a matter
for the French court to take into account the relevant rules of
conflicts of laws relating to the transfer on succession of the
resale right.
Whatever, they may be. Perhaps we now need a new category of
intellectual private international client practitioner?