Resale right: Legacies are now possible… in theory
Unlike the other economic rights, the resale right could not be bequeathed until now. In a law enacted on 7 July 2016, the legislature made it possible for the resale right to be bequeathed to a close relation, a friend, a foundation, etc. However, the wording adopted in the law is still far from satisfactory.
The article L. 123-7 of the Intellectual Property Code provided that, after the author’s death, the resale right “shall subsist to the benefit of the author’s heirs […], to the exclusion of any legatees and successors in title”. Therefore, only the heirs at law (children, parents, brothers and sisters, cousins, etc.) could be beneficiaries of the right, even if the author had named a legatee (an individual, a foundation, etc.) in his or her will.
The legislature wanted to end this French idiosyncrasy in the “Freedom of Creation, Architecture and Heritage” Law. Enacted on 7 July 2016, the Law reverses the rule prohibiting legacies and makes it possible for authors to bequeath their resale right to a close relation, a friend, a foundation, etc.
Unfortunately, in the view of all the specialists (professors of law, notaries and genealogists), the wording adopted by the legislature is far from satisfactory. It would have been sufficient to delete the terms “to the exclusion of any legatees and successors in title” to allow for legacies, but instead the new article L. 123-7 introduces a highly complicated mechanism which leads in large part to a result that is strictly the opposite of what was intended!
If the will refers specifically to the resale right (a specific legacy or a legacy by universal title), the named legatee will in principle be able to benefit from it, subject to the rights of the heirs entitled to a reserved share. The provision is more or less (but not totally) clear in this regard.
On the other hand, the legatee named to receive the deceased author’s entire estate (i.e. the sole or universal legatee) will be much less fortunate! Indeed, the Law provides that the universal legatee may receive the resale right only “in the absence of heirs”. But, in French law, “heirs” are not just the children or parents; they are also all the cousins to the sixth degree (all the great-grandchildren of all the author’s great-grandparents!)…
In practice, as the Law is worded, a universal legatee will be able to benefit from the resale right only once a notary has checked – usually with a genealogist – that there are no relatives of the deceased author, in France or elsewhere, to the sixth degree. However, in almost all cases, it will be possible to trace some distant relatives, thus depriving the universal legatee of the resale right.
The legislature clearly did not mean to adopt such a solution. But unfortunately that is how the provision was written… It seems that the discussions were muddled by the insistent intervention of certain foundations in receipt of a universal legacy which wanted to be able to have the resale right withdrawn retroactively from the heirs currently vested with the right. The unconstitutional nature of such a provision led the members of parliament and the government to try to hastily “cobble together” an alternative solution, leading in the end to this unfortunate result.
ADAGP has drawn the attention of the Ministries of Culture and Justice to this legislative defect. However, in view of the political agenda in 2017, a correction may not be possible for several months… In the meantime, we can only advise artists who wish to transmit their resale right by will to do so specifically, in the form of a specific legacy.
These questions are unfortunately very technical in nature: you can contact Adagp’s legal department (juridique@adagp.fr) for further information.