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Spanish painter Salvador Dalí died in Spain and established the Spanish State as sole legatee over his intellectual property (IP) rights which are administered by a Spanish foundation and managed by a Spanish society. It seems surreal, then, that French law prevailed over Spanish law in the European Court of Justice’s decision in a dispute about which law governs the resale rights to his works.

When surrealist painter Salvador Dalí died, in 1989, he left five heirs at law, who were members of his family. In his will, he appointed the Spanish State as the sole legatee of his IP rights. The rights are administered by a Spanish foundation, the Fundación Gala-Salvador Dalí, which he created and controlled during his lifetime. In 1997, the Fundación granted an exclusive worldwide mandate to VEGAP, a Spanish society, to manage and exercise copyright over his works. VEGAP, in its turn, contracted with its French counterpart, ADAGP, to manage the artist’s copyright in France.

The issue in dispute is who are the proper beneficiaries of the resale right. The EU Resale Right Directive 2001/84 gives the author of a work of art, and after his death, those entitled under him, a right to receive a royalty based on the sale price for any resale of a work subsequent to the first transfer. ADAGP has been paying the proceeds of the resale right directly to Dalís legal heirs, pursuant to French legislation. The Fundación, however, was of the opinion that it was entitled to those royalties according to Dalí’s will, and it brought proceedings in the Paris Regional Court for payment of those royalties. That court referred to the Court of Justice the question whether the Directive precludes the national law which gives the resale right only to the artist’s heirs and excludes the legatees under the will.

The Court of Justice found that while the drafters of the Directive intended those entitled under the author to get the benefit of the resale right after the author’s death, it left it to the Member States, pursuant to the principle of subsidiarity, to decide which categories of persons were entitled under their national law. That meant that France was free to decide who could be the beneficiaries of Dalí’s resale royalties, even if this was contrary to Dalí’s will. The Court added, however, that it was for the referring court to consider all of the relevant rules for resolving conflicts of laws of succession in order to decide which national law governs the transfer on succession of the resale right.