An artist's estate in Spain: what happens to the works and the copyright

Vincent van Gogh sold very little in his lifetime. When he died in 1890, his paintings passed to his brother Theo, who died only months later. They then went to Theo's widow, Johanna van Gogh-Bonger, who organised exhibitions, published the letters and spent decades making that legacy known. Much of what Van Gogh is worth today comes down to how his estate was managed.

An artist's estate is unlike any other. Beyond belongings, it includes rights that stay alive for decades and that someone has to manage. This guide explains what exactly is inherited under Spanish law and what to do in the first few months.

The works and the rights are two separate inheritances

This is the most common confusion. Owning a painting gives you no copyright in it, and holding the copyright does not make you the owner of the painting. Spain's Intellectual Property Act says so expressly: whoever acquires the object does not, by that fact alone, acquire any right to exploit the work.

For heirs, this has two consequences.

• Works left in the studio: the heirs inherit both the object and the rights. They can sell, lend, exhibit or keep them.
• Works the artist sold: the painting belongs to the collector or the museum, but the rights belong to the heirs. If the owner wants to reproduce it in a catalogue, on products or in a campaign, they need the heirs' permission, except in the specific cases where the law allows use without asking.

An example. Your mother sold a painting to a collector in 1995 and died this year. The collector still owns it and may exhibit it. But if a publisher wants to use the image on a book cover, it is the heirs who authorise it and get paid.

Which rights are inherited

Economic rights

These allow the holder to authorise or prohibit the reproduction, distribution, communication to the public and adaptation of the work, and to be paid for it. They pass on death like any other right, by will or under the rules of intestate succession.

They last for the artist's lifetime plus 70 years, counted from 1 January of the year after death. There is one important exception: if the artist died before 7 December 1987, the term is 80 years. After that the work enters the public domain and anyone may use it, provided authorship and integrity are respected.

Moral rights

These are not economic and cannot be sold. After the artist's death, two of them can be exercised with no time limit: demanding that authorship be acknowledged, and objecting to any distortion or alteration of the work that harms the artist's reputation.

Who exercises them? The person the artist expressly named in their will and, if no one was named, the heirs. This is one of the reasons an artist should make a will.

A third right has a time limit: deciding whether to release work the artist never showed. That decision belongs to the same people for 70 years from the death.

The artist's resale right

Whenever a work is resold through an art market professional, such as a gallery, an auction house or a dealer, the artist is entitled to a percentage of the price. After death, this right passes to the heirs and lasts 70 years. It can only be transferred by inheritance and cannot be waived.

It applies to resales of 800 euros or more, excluding tax, on this scale:

Portion of the resale price	Rate
Up to €50,000	4%
€50,000.01 to €200,000	3%
€200,000.01 to €350,000	1%
€350,000.01 to €500,000	0.5%
Above €500,000	0.25%

The total never exceeds 12,500 euros per resale. Two examples: a work resold for 20,000 euros produces 800 euros for the heirs; one resold for 300,000 euros produces 7,500 euros.

This right is collected through collecting societies. For the visual arts in Spain, that society is VEGAP.

Contracts signed by the artist remain in force

The artist's death does not, by itself, end the contracts that were in force. If the artist granted rights to a gallery, a publisher or a brand, the heirs generally step into the artist's place, with the same rights and the same obligations. That is why those contracts should be located as soon as possible: they say what can be done with the work, who can do it and until when.

The three most common problems

Several heirs and no one to decide

When rights pass to several heirs, important decisions need agreement. If no one is in charge, any request from a museum or a publisher can go unanswered for months. The usual solution is a written agreement on who manages, within what limits and how income is shared.

No one knows which works exist

Without an inventory it is hard to divide, value and defend the work. It is also easier for doubtful pieces to circulate.

The market asks the family to confirm authenticity

Galleries and auction houses often turn to the heirs to ask whether a work is genuine. It is wise to decide in advance who answers, on what basis and with what documentary support, because a hasty answer can cause problems.

What to do in the first few months

1. Find the will. Check whether the artist named someone to exercise their moral rights or left instructions about the work.
2. Make an inventory. Finished and unfinished works, sketches, archive, correspondence and photographs, with an image and the dimensions of each piece.
3. Gather the contracts in force. Galleries, publishers, licences, pending commissions and works on consignment.
4. Notify the collecting society. If the artist was a member of VEGAP, report the death and prove who the heirs are so that payments continue.
5. Value the works and the rights. They form part of the estate for Spanish inheritance tax, which as a general rule must be filed within six months of the death. This calls for a tax adviser.
6. Decide who manages the legacy. One person, several by agreement or, for large estates, a foundation or a company.

If you are an artist, plan ahead

What best protects a body of work after its author's death is decided during their lifetime. Three simple steps prevent most disputes.

• A will stating who receives the works, who receives the rights and who will exercise the moral rights.
• An up-to-date inventory of your work, with photographs, dates and the whereabouts of each piece.
• Clear instructions on what you want and what you do not: unfinished work, new editions, commercial uses, work that should not be shown.