Art law in the Netherlands is mainly copyright, contract law, portrait rights and the rules for the art trade. As an artist you own the copyright in your work automatically, without registration, and selling the physical work does not transfer it: under Article 2 of the Dutch Copyright Act (Auteurswet) copyright only passes by a signed written deed, and your moral rights under Article 25 stay with you even after a transfer.
The practical problems usually arise where these rules meet: a gallery agreement that says nothing about risk or commission, a portrait published without consent, or a resale where nobody pays the resale royalty. This article explains each area and what belongs in your contracts.
Innholdsfortegnelse
How does copyright protect your art?
Copyright arises automatically when you create a work with its own original character that bears your personal stamp. Under Article 37 of the Copyright Act it lasts until seventy years after the 1st of January following the year of the maker’s death.
Copyright gives you control over reproduction and publication of your work: prints, merchandise, online images and exhibitions. Because there is no registration, you must be able to prove authorship and the date of creation yourself. Keep sketches, drafts, dated files and correspondence. A collective management organisation such as Pictoright (visual art) or Buma/Stemra (music) can license and collect for you, but membership is not a condition for protection.
Through the Berne Convention your work is also protected in most other countries, under the law of each country where protection is claimed.
Which rights do you keep after a sale or transfer?
You keep your moral rights and, for resales on the art market, your resale right. Neither can simply be signed away with the work.
Under Article 25(1) of the Copyright Act you can oppose publication without your name, changes to the work, and any distortion or mutilation that could harm your honour or reputation. Under Article 25(3) you can waive the right to be named and, to a limited extent, the right to oppose changes, but never the right to oppose distortion.
The resale right (volgrecht) in Article 43a of the Copyright Act gives the maker a fee on every resale of an original work of art in which a professional art dealer is involved, except the first sale by the maker. You cannot transfer or waive it, except by bequest. The amount and minimum sale price are set by decree; collective management organisations such as Pictoright collect it in practice.
When may a portrait be published?
That depends on whether the portrait was commissioned. Under Article 20 of the Copyright Act a commissioned portrait may not be published without the consent of the person portrayed, unless agreed otherwise.
For a portrait made without commission, Article 21 of the Copyright Act allows the person portrayed to oppose publication if he has a reasonable interest, for example privacy or reputation. Commercial use of a recognisable person, such as on a poster for sale, is often where that interest wins. Our article on publisering og portrettrettigheter explains the balancing in more detail.
What belongs in a commission, gallery or licence agreement?
Every agreement should state in writing which rights pass, what is paid and who bears which risk. Disputes almost always turn on what was never written down.
A kommisjonsavtale sets the work, deadline, price, payment instalments and whether the client may make reproductions. Without a deed under Article 2 of the Copyright Act, the client gets the physical work and at most an implied licence for the agreed purpose, not the copyright.
A gallery or consignment agreement should cover the commission percentage, the minimum sale price, who insures the work while it is at the gallery, when ownership passes to a buyer and when the artist is paid, and whether the artist may sell directly to collectors introduced by the gallery. Agree on retention of title under Article 3:92 of the Dutch Civil Code (BW) until the gallery has paid you.
A lisensavtale allows someone else to use your work for merchandise, books or online use while you keep the copyright. State whether it is exclusive, which media and territories it covers and for how long. An exclusive licence also requires a written deed under Article 2 of the Copyright Act.
Also agree how disputes are resolved: mediation, arbitration or a named Dutch court, and which law applies in international deals.
Which rules apply to the art trade?
Art dealers fall under the Dutch Anti-Money Laundering and Anti-Terrorist Financing Act (Wwft) when payment for an art object is €10,000 or more, under Article 1a(4)(k) of that Act. They must identify the buyer, check the source of funds and report unusual transactions.
The same applies to linked transactions that together reach €10,000. As an artist selling directly to a collector, expect a gallery or intermediary to ask for identification on larger sales.
For VAT, Article 9 of the VAT Act 1968 (Wet op de omzetbelasting 1968) provides a reduced rate of 9% for items in Table I, which includes certain supplies and imports of works of art; the standard rate is 21%. Which rate applies to your sale depends on who sells and how; ask your tax adviser or the Belastingdienst.
Moving art across EU external borders can require an export licence for older cultural goods, and the Heritage Act (Erfgoedwet) restricts the export of protected Dutch cultural objects. For temporary exhibitions abroad, an ATA Carnet allows temporary import without paying import duties, provided the works return in time. Check provenance carefully when buying older art, so you do not acquire stolen or illegally exported objects.
What can you do against copying, damage or defamation?
Against copying, you can send a demand letter and, if needed, seek an injunction in interim relief proceedings (kort geding). In intellectual property cases the losing party pays the winner’s reasonable legal costs under Article 1019h of the Code of Civil Procedure (Rv).
Against false statements about you or your work, such as untrue claims about authenticity, you can act under the general tort rule of Article 6:162 BW and ask the court to order removal or rectification. Deliberately damaging someone’s reputation by alleging a specific fact can also be the criminal offence of defamation (smaad) under Article 261 of the Dutch Criminal Code (Sr), or slander (laster) under Article 262 Sr if the maker knows the fact is untrue. Critics may express strong opinions; they may not spread facts they know are false.
Keep screenshots, dates and witnesses. For damage to a consigned work, the gallery agreement and insurance usually decide who pays, which is why they must be agreed before delivery. More on images in particular is in our article on opphavsrett på bilder.
What should you check as an artist?
Most disputes can be prevented with a written agreement and good records. Check these points before you deliver or sell.
- Do you keep dated sketches, files and correspondence that prove authorship?
- Does the contract state that you keep the copyright, or which rights you license or transfer by deed?
- Does the gallery agreement cover commission, insurance, payment term and retention of title?
- Have the people portrayed in a commissioned portrait consented to publication?
- Are you registered with a collective management organisation to collect licence fees and resale royalties?
What should you check as a gallery, buyer or client?
Buying a work does not give you the right to reproduce it. Check these points before you pay or publish.
- Do you need reproduction rights, and are they in a signed deed or licence from the artist?
- For payments of €10,000 or more: have you met the Wwft identification and source-of-funds checks?
- Is the provenance of older works documented, and is an export licence needed?
- Will a resale through a professional dealer trigger the resale royalty under Article 43a of the Copyright Act?
- Do you need consent of the person portrayed before publishing a portrait?
Hva kan vi gjøre for deg med kunstrett?
Våre bedriftsadvokater advise artists, galleries, collectors and clients.
- We draft and review commission, gallery, consignment and licence agreements.
- We draft deeds of assignment and licences under Article 2 of the Copyright Act.
- We send demand letters for unauthorised copying and conduct interim relief proceedings.
- We assess portrait right and defamation issues and request removal of publications.
- We set up Wwft client due diligence procedures for galleries and dealers.
Sammendrag
- Copyright arises automatically and lasts until seventy years after the maker’s death; selling the work does not transfer it.
- Copyright and exclusive licences only pass by signed deed under Article 2 of the Copyright Act; moral rights and the resale right stay with the artist.
- Commissioned portraits may only be published with consent (Article 20 of the Copyright Act).
- Art dealers must apply Wwft checks to payments of €10,000 or more.
Ofte stilte spørsmål
Does a buyer of my painting get the copyright?
No. Under Article 2 of the Copyright Act copyright only passes by a signed written deed. A buyer gets the physical work, not the right to make prints, merchandise or online reproductions, unless you transferred or licensed that right.
Do I need to register my work to be protected?
No. Copyright arises automatically when you create an original work and lasts until seventy years after your death (Article 37 of the Copyright Act). Keep dated sketches and files to prove authorship; joining Pictoright or Buma/Stemra helps with licensing and collecting, but is not required for protection.
What is the resale right?
Under Article 43a of the Copyright Act the maker receives a fee on every resale of an original work of art in which a professional art dealer is involved, except the first sale by the maker. The right cannot be transferred or waived, except by bequest.
