Resale right: What the law really requires of gallerists in 2026

Substantial amounts of unclaimed resale royalties have accumulated over the years in the accounts of French collecting societies — royalties owed to artists who could not be located, to rights holders unaware of their existence, or to works whose traceability had been lost in the labyrinthine channels of the secondary market. This figure says something essential about the real state of resale right in France: a legally solid mechanism, but administratively under-managed, which many gallerists still apply in an approximate fashion, sometimes without knowing it.

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01A century-old law that has lost none of its complexity

The resale right was born in France in 1920 — the law of 20 May, passed in a climate where one could watch the heirs of Van Gogh or Modigliani look on helplessly as dealers grew rich from works bought for a pittance during the artist's lifetime. The original idea was straightforward: grant creators a share of the capital gain realised on the resale of their works. The original rate, set at 3%, has been in constant evolution since.

It was European Directive 2001/84/EC that profoundly reconfigured the applicable framework across the Union. Transposed into French law through Article L. 122-8 of the Code de la propriété intellectuelle, it introduced a degressive, capped scale: 4% up to 50,000 euros, 3% between 50,000 and 200,000 euros, 1% between 200,000 and 350,000 euros, 0.5% between 350,000 and 500,000 euros, and 0.25% beyond that — all subject to an absolute ceiling of 12,500 euros per transaction. The trigger threshold remains fixed at a sale price of 1,000 euros.

What many people do not know is that this scale does not amount to a simple levy of 5%: it involves a calculation by bracket, the effective result of which varies considerably depending on the price of the work. On a sale at 10,000 euros, the sum owed is exactly 400 euros. On a sale at 500,000 euros, the bracket-by-bracket calculation comes to 8,750 euros — about 1.75% of the price; the 12,500-euro ceiling only bites above roughly two million euros, an explicit protection for the major auction houses in transactions running to several tens of millions.

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02Who really pays, and to whom

The question of who bears the resale right is one of the most poorly understood in the sector. Under French law, it is the seller who bears the resale right economically — but the legal responsibility for its payment falls on the market professional who carries out the sale. In other words, if you are a gallerist and you arrange the resale of a work on behalf of a collector, it is you — and not the collector — who are legally required to calculate, collect and remit the sum to ADAGP within three months of the transaction.

This distinction is fundamental. The law does not leave the seller to manage their own obligations. It designates the professional as a mandatory intermediary, which means that a gallerist who fails to retain the corresponding amount from the sale proceeds before remitting the funds to the seller is in an irregular position, even if the seller themselves was unaware that a right was owed. Good faith is not a defence.

Since 2006 and the extension of the directive to the entire professional art market, this obligation applies not only to auction houses but also to galleries and dealers operating in the context of private sales — an extension that closed what the sector called the "private sales loophole", long used to circumvent the mechanism.

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03The works concerned: broader than one might think

One of the most common pitfalls is underestimating the scope of eligible works. The law covers original graphic and plastic artworks: paintings, sculptures, drawings, prints, art photographs, ceramics, tapestries, glassworks. The criterion of originality is central — a numbered and signed edition may be considered original if it does not exceed a certain number of copies, generally set at 8 original prints plus 4 artist's proofs for photographs and prints.

What is not covered is equally worth knowing: literary manuscripts, architectural works, applied arts and industrial design are excluded. But the boundary can prove fluid. A one-of-a-kind piece of furniture by a designer who is also a plastic artist may fall under the resale right if its creator is recognised as an artist rather than a designer — a qualification that gave rise to several disputes before the French commercial courts during the 2010s.

The duration of protection follows the general copyright regime: 70 years post mortem auctoris. It is therefore the rights holders — heirs, legatees, mandated collecting society — who receive the resale right for works by deceased artists. For Picasso, who died in 1973, protection runs until 2043. For Basquiat, who died in 1988, until 2058. Gallerists reselling works by these artists are subject to the same obligations as for living artists.

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04The extension to digital sales: the work in progress of 2024–2026

The question of NFTs and digital works took several years to find a coherent legislative response. In 2021, when Christie's hammered Beeple's digital work Everydays: The First 5000 Days for 69.3 million dollars, the question of whether the resale right applied remained open: was the work an original artwork within the meaning of the directive? The prevailing answer at the time was no, for want of a physical support.

The evolution of the European regulatory framework, notably with the AI Act of 2024 and the Commission's preparatory work on the revision of Directive 2001/84/EC, gradually shifted this reading. In France, a circular from the Ministry of Culture published in early 2025 clarified that original digital works — including NFTs where they constitute the work itself and not merely a certificate of authenticity — could fall within the scope of the resale right provided that their author was identified and that the sale reached the legal threshold.

This shift raises considerable practical problems. NFT sales platforms such as OpenSea or SuperRare incorporate automatic royalty mechanisms via smart contracts, but these operate in a decentralised manner and do not necessarily correspond to the legal framework of the resale right — notably because the applicable rate and the recipient of the sum differ across systems. Galerie Perrotin was one of the first French structures to publicly document its compliance protocol for NFT sales, in 2024, distinguishing between the contractual royalties provided for in the smart contract and the legal obligations falling under the resale right and required to pass through ADAGP.

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05What audits reveal: a troubling rate of evasion

No comprehensive public audit of resale-right compliance has been published to date, but the collecting societies themselves — ADAGP in France and its British counterpart DACS — regularly point to the same combination of failures: ignorance of the law among smaller structures, deliberate under-reporting in other cases, and the absence of systematic oversight mechanisms.

In France, audits are conducted by ADAGP, which holds a right of access to the sales registers of market professionals. The penalties provided for are substantial: Article L. 335-3 of the Code de la propriété intellectuelle allows non-declaration to be classified as infringement by omission, with fines reaching up to 300% of the unpaid right, to which damages may be added. In 2024, a Parisian art dealer was sentenced to six months' imprisonment, suspended, for deliberately failing to remit the resale right on twelve transactions carried out between 2020 and 2022.

This is not an isolated case. Several regional galleries have been the subject of amicable recovery proceedings initiated by ADAGP over the past two years — situations that could have been avoided by a simple update to their internal processes.

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06The compliance tools available in 2026

Managing the resale right does not require disproportionate resources, provided the process is structured from the first transaction. ADAGP has offered a secure online declaration portal since 2023 — the "Resale Right Portal" — accessible to all registered market professionals. It allows each sale to be declared individually or in batches, automatically calculates the amount owed according to the legal scale, and generates the records needed for accounting purposes. The consolidated annual declaration may be substituted for individual declarations for structures carrying out more than ten eligible transactions per year.

On the sector tools side, several gallery management software packages have integrated dedicated modules. Artwork Archive, widely used in the United States and increasingly adopted in Europe, added a "resale rights" module in 2024 allowing the applicable rules to be configured according to the country of sale. Artory, which specialises in blockchain traceability for artworks, offers a similar solution oriented towards NFT sales.

For galleries managing a significant volume of resales — beyond around twenty per year — the question of a global mandate agreement with ADAGP deserves serious consideration. This arrangement delegates to the collecting society the entire process of calculation, collection and redistribution, in exchange for a management commission set at 3.5% of the amount collected. The internal administrative burden is considerably reduced as a result.

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07The geographical boundaries of the right and their pitfalls

The resale right applies whenever a sale is carried out in France, regardless of the nationality of the buyer, the seller or the artist. It is the territorial criterion that prevails — not the nationality of the parties. But the globalisation of the art market has multiplied ambiguous situations: a work sold via an online platform whose server is located outside the EU, a transaction concluded at an international art fair in Geneva or Hong Kong, or a sale agreed verbally in Paris but invoiced from a Swiss subsidiary.

French case law has gradually consolidated an approach based on the "effective place of sale" — that is, the place where agreement on the price and the object was reached, regardless of where the invoice was issued. This interpretation was confirmed by the Paris Court of Appeal in a 2023 ruling involving a gallery that had attempted to contractually locate its sales in Geneva while operating from a Paris premises.

The United Kingdom's departure from the European Union has moreover created a notable asymmetry: while the UK maintains its own resale right regime (derived from the Artist's Resale Right Regulations of 2006, now integrated into post-Brexit legislation), the rates and thresholds differ slightly from the European directive. For a French gallerist working with British buyers or sellers, it is worth verifying which regime applies according to the place of the transaction — an additional complexity that no general-purpose software yet handles in an entirely satisfactory manner.

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08Anticipating rather than enduring: the stance that solid galleries adopt

The gallerist who correctly anticipates the resale right does not experience it as an unwelcome levy, but as a structural element of their pricing and their relationships with artists. Galleries that have formalised their processes — among them Galerie Templon, which made its compliance practices public in 2023 at a CPGA round table — report that incorporating the resale right into consignment contracts considerably simplifies relations with selling collectors: the amount is provided for contractually, retained automatically, and the collector receives a detailed statement.

It is precisely this documented transparency that constitutes the best protection in the event of an audit. ADAGP does not seek to penalise good-faith structures with clear accounting — it focuses its attention on operators who cannot produce a register of their secondary transactions. Keeping a separate register of resales, distinct from the main account book, with for each transaction the artist's name, the date, the price, the calculation of the right and proof of payment, remains the safest practice — and the easiest to defend.

What the scale of undistributed funds ultimately reveals is that the problem is not the existence of the resale right, but its systematic implementation. Galleries that treat this obligation as they treat VAT — with rigour, automatism and traceability — no longer see it as a burden. Those that continue to approach it case by case, according to their mood or their administrative workload at any given moment, expose themselves to painful catch-up demands.