Consider a young, unknown painter who sells a canvas for three hundred euros. Twenty years pass, the painter establishes a reputation, and that same work is auctioned for one hundred thousand. Between these two figures lies a vast disparity, a capital gain of nearly one hundred thousand euros that emerged as the work changed hands. The question rarely posed is straightforward: to whom does this appreciation belong? For the intuitive response—that it belongs to the individual who purchased at a low price and sold at a high one—conceals a striking omission. In the distribution of this capital gain, the individual without whom the work would not exist—the creator—is, by default, absent.
This distinguishes art from almost any other profession and warrants careful consideration. A writer receives royalties for every copy of their book sold, provided the book continues to sell. A musician receives payment each time their song is played. Their work is reproduced, and each reproduction yields a return. However, painters and sculptors create a unique object. They sell it once, and with that sale, their economic relationship with the work concludes, in principle. Everything that piece gains in value thereafter—which may increase a thousandfold—is distributed among collectors, galleries, and auction houses. The artist, who produced the asset and whose growing prestige is precisely what drives the price upward, remains an observer as their own name enriches others.
Against this anomaly exists a discreet and little-known mechanism: the resale right, or by its French name, droit de suite. It is the artist's right to receive a small percentage each time one of their works is resold with the involvement of a market professional. Not on the first sale, but on subsequent ones, where the capital gain appears. In Europe, this was harmonised by a 2001 directive, and in Spain, it is currently found in Article 24 of the Intellectual Property Law. The figures are deliberately modest: 4% at the lower end of the price scale, decreasing in tiers to 0.25% at higher figures, with a cap of twelve thousand five hundred euros per work, regardless of how high the sale price may be. In Spain, it is only activated once the resale price exceeds eight hundred euros. It is neither a tax nor an expropriation: it is a means for the artist to participate, albeit minimally, in the economic trajectory of what they created.
Once the logic is understood, it is difficult to see why it is controversial; yet it is, and the objections it raises are revealing of how we conceive of value. The first is that it increases costs and hinders the market, adding friction and paperwork to every transaction. It is true that it adds administrative burden, even if the percentage is small; for this reason, the right is subject to collective management so that the artist does not have to pursue every sale, and an entity takes responsibility for collecting and distributing it. In Spain, this function is fulfilled by visual creator management entities. The friction exists, but it is the price of ensuring a fair distribution, not a flaw in the system.
The second objection is more interesting because it touches upon a fundamental idea regarding property. It is argued: when you sold the painting, you sold it in its entirety; the buyer assumed the risk that it might be worthless, and it is fair that they retain the profit if they are successful. This is a solid argument if we consider the work as any other commodity, like someone who buys a house and resells it for a profit. However, a work of art is not entirely just any commodity, and the law itself acknowledges this in a decisive detail: the resale right is inalienable and non-waivable. The artist cannot sell or gift it even if they wish to, and it is not transferred with the work, but only to their heirs. That is to say: the law establishes that there is something in the relationship between the creator and their work that is not exhausted by the sale, which remains even if the object has changed hands. One may sell the painting; one cannot entirely sell the bond of having created it.
The droit de suite is a legal response to an intuition that is difficult to articulate: that the market value of a work is not produced solely by the person who possesses it, but above all by the person who made it and the prestige their career accumulates. When that three-hundred-euro painting is auctioned for one hundred thousand, what has appreciated is not the canvas or the pigment: it is the artist's name, their entire body of work, and the position they have come to occupy. The capital gain is generated in large part by the creator themselves through everything they have done since. That they receive a fraction of it is neither charity nor a guild privilege: it is an acknowledgement that they remain, in some way, part of what gives that piece its value.
And for this reason, the right lasts as long as copyright, and heirs collect it for seventy years after the artist's death. Not to enrich anyone—the amounts are rarely large—but because the logic remains coherent to the end: as long as the work continues to appreciate thanks to the name it bears, some portion of that increase belongs, if only symbolically, to the person who built that name. The market prefers to think that the work, once sold, is completely detached from its author and is free to generate capital gains that no longer concern them. The resale right is the law reminding us, with a small and stubborn percentage, that this separation is never total. That in the price of a work, the hand that made it always pulses, even if we choose not to see it.
On the open conversation
This text intersects with two themes I have been exploring: the relationship between the value of a work and the labour that produces it, and the distinction between market price and what sustains that price. The resale right interests me less as a regulation than as a symptom: the law acknowledging that the bond between creator and work is not exhausted by the sale. Should anyone wish to contribute from the perspectives of intellectual property law, the economics of culture, collective management, or professional experience within the sector, this notebook remains open.
Sources
Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ L 272, 13 October 2001).
Royal Legislative Decree 1/1996, Consolidated Text of the Intellectual Property Law, article 24 (current wording following Law 2/2019 of 1 March; Law 3/2008 was repealed). BOE.
VEGAP (Visual Entidad de Gestión de Artistas Plásticos), “Resale right (article 24)”, vegap.es. Spanish threshold of €800; brackets and cap of €12,500.