AUTORES DE OBRAS DE ARTES PLÁSTICAS NO APLICADAS Y SUCESIÓN MORTIS CAUSA: INDISPONIBILIDAD INTER VIVOS DEL DERECHO DE PARTICIPACIÓN.

Abstract

Section 1 of Spanish Act 3/2008 of 23 December defines the contents of the resale right for the benefit of the author of an original work of art, more commonly know as Droit de suite. It acknowledges that the authors of works of visual art have a right to receive from the seller a share of the price of any resale after the artist's first sale. This right belongs to the author. As it cannot be transferred inter vivos, it goes to the artist's successors after the death or declaration of death of the original work's creator. To sum up, as the Berne Convention for the Protection of Literary and Artistic Works declares, it is an inalienable right to an interest in resale of the work and it belongs to the author or, after the author's death, the persons or institutions to whom each country's legislation confers that right. After reviewing this basic background, an examination is made of the special features of Spanish Act 3/2008, which adapted the Spanish regulations on the resale right for the benefit of the author of an original work of art to the terms of Directive 2001/54/EC of the European Parliament and of the Council of 27 September 2001, and repealed section 24 and the additional provision of the Revised Intellectual Property Act (Spanish Act 1/1996). One such special feature is the presence of and controversy surrounding this right in court proceedings. In court the main aspects in conflict pertain to the legal standing of management entities as plaintiffs, the plurality of possible beneficiaries, one-off disputes over sculptures and even conflicts of applicable law vis-à-vis a disagreeing system, such as the Court of Justice's ruling of 15 April 2010, which finds that the EU directive does not prevent the law of a Member State from accepting only the heirs entitled by law to a share in the estate as the beneficiaries.