A share of the sale price of a work of art can constitute copyright

The concept of copyright affects many professions. That is why the Service of Advance Rulings has issued decisions for journalists, graphic designers, IT professionals, … However, it had not yet offered a ruling about the situation of a visual artist, and furthermore an artist exercising his or her professional activity through the intermediary of a company. That has now been done with an as yet unpublished decision from January 2016. The taxpayer in question is a painter whose paintings are marketed by an art gallery. In principle, the sale of a work of art does not give rise to the transfer of copyright with the exception of the right to exhibit the work such as it is (art. XI.173 of the Code of Economic Law). In the framework of its mission, it so happens that the gallery can reproduce and communicate to the public the works of the author on different media. Such reproductions and communications require the agreement of the author, which the parties have not failed to achieve in writing. The Service of Advance Rulings recognised that a portion of the sale price of the work constitutes the equivalent of a temporary license granted to the gallery by the holder of the rights. This consideration is therefore qualified as movable assets and benefits from the flat rate regime of taxation that applies to copyright. This decision is a fresh illustration of the fact that in the framework of an economic activity, the reproduction and the communication of a work protected by copyright are ever present. However, it is important to ensure the existence of a transfer or surrender of the copyright and, of course, determine the amount of consideration.