The Art Law Review: Germany
Germany has many internationally recognised world-class public museums, a growing number of superb private museums and a thriving contemporary art scene. Nevertheless, from a global perspective and compared to markets like China and the United States, the German art market is relatively small, according to the Art Basel and UBS report The Art Market 2020, with only slightly more than 2 per cent of worldwide turnover being made in Germany.2 One of the highlights in the UBS report regarding the emerging online art market is that German collectors seem to be open to buying art online, even in the higher price segments.3
The year in review
Three major issues are currently being discussed – and criticised – by German art market participants and by art law policymakers, as these issues are considered to be competitive disadvantages for the art market in Germany.
- Since 1 January 2020, new regulations derived from recent European anti-money laundering legislation have required art dealers to fulfil certain formalities for almost every transaction.4
- German cultural protection legislation underwent a broad reform in 2018, which introduced a rather bureaucratic system of export licences that have to be obtained before exporting cultural goods located in Germany. Several complaints against numerous provisions of the new law have been filed with the Federal Constitutional Court; however, in August 2021, the Court decided that it will not decide on these complaints in the substance at this point and advised the complainants to first achieve clarification before the administrative courts in the context of a concrete administrative decision applying the new law.5 However, the Court may have to deal with the law at a later stage, if an addressee feels aggrieved by a legally binding concrete administrative decision applying the new law.
- On 1 January 2014, the value added tax (VAT) rate in Germany on sales of artworks increased from 7 per cent to 19 per cent. This topic reappeared at the top of the agenda during the covid-19 pandemic as the rate of VAT was temporarily reduced. However, this was not turned into a permanently lowered VAT rate.
Mention must also be made, however, of some very positive policy developments, such as the state loans granted to art galleries during the covid-19 crisis6 and the increase in the federal budget for art purchases, as well as other publicly funded projects helping the gallery scene to produce exhibitions, such as the federally funded programme, 'Neustart Kultur'.7
Finally, during the pandemic, an increase of online activities in general, as well as a steep rise in sales of tokenised art in the form of non-fungible tokens (NFTs) took place, which involves legal challenges (see Section V.v).
i Title in art
Passing of title
In general, according to German law, the purchase of any goods has two aspects.
- First, the parties have to conclude a valid contract (oral or written) containing all the essential components of the transaction, such as which object is being bought for what price or which object is to pass to another owner by way of a gift.
- Second, the passing of property requires that the parties agree that (1) the title should pass, and (2) the item should be handed over to the buyer. Instead of physically handing over the object to the buyer, it is sufficient that the parties agree on the passing of title if the object is already in the possession of the buyer. There are, however, also alternatives to the physical handing over of the object: if the seller is in possession of the work, it is sufficient that the seller and the buyer agree to a contract that has the effect that the buyer acquires indirect possession. This could be, for example, a loan either between the buyer and the seller or between the buyer and a third party. In addition, if a third party, such as a museum, is in possession of the object, the physical transfer of the object can be replaced by passing on the claims against the third-party possessor (e.g., a museum) to the new owner.
The issue of whether title is acquired does not necessarily depend on whether the person in possession of the object, and who wants to transfer it to another person, is actually the owner of the object – unless the recipient of the object is not acting in good faith. The recipient of the object is not acting in good faith if either (1) he or she knows that the person from whom he or she is receiving the object is not the owner of the object, or (2) the circumstances of the ownership of the object are unknown to the recipient because of gross negligence on his or her part. There is no general obligation in civil law to investigate the title of the seller, but under unusual circumstances (e.g., deals at flea markets, cash deals or other suspicious circumstances) due diligence becomes necessary. In addition to the rather lax due diligence obligations found in general civil law, new due diligence requirements were recently introduced in the Cultural Property Protection Act, which prohibits putting stolen items on the market.8
Nevertheless, as a principle, acquisition in good faith cannot take place if the item was stolen, lost or otherwise left the owner's possession against his or her will.9 An exception to this rule (i.e., whereby acquisition in good faith is possible even for stolen goods) is made for money (coins, notes, etc.) and for items that are sold at public auction10 – an extremely important, and often criticised, exception for the art market.
Furthermore, German civil law recognises the legal principle of usucapion. According to this principle, it is possible to become the owner of any item (even a stolen item) after receiving and directly possessing it for 10 years in good faith. The institution of usucapion often plays an obstructive role in restitution cases, when looted or stolen art has been in the hands of the current possessor for a long time.
In addition to usucapion, there can generally be a transfer of property if an item is sold at public auction, even if it was stolen.11
Burden of proof
There are several provisions in the law regarding the burden of proof that make it difficult for a former owner who was dispossessed to reclaim an artwork from the current holder.
According to the general principles of German civil law, the burden of proof lies with the person who is making a claim. As a consequence, the person who argues that the current holder of an object is not the owner, but that he or she instead is the owner, has to prove that: (1) he or she acquired ownership; (2) he or she did not lose the ownership; and (3) the current holder is not the owner but, rather, acquired the object in bad faith.12
Moreover, German civil law provides for a presumption that the possessor of an object is actually the owner of the object. Thus, as far as stolen objects are concerned, the burden of proof lies in principle with the previous owner, not with the current holder.13
Finally, as far as usucapion is concerned, it generally suffices if the current holder proves that he or she has had the item concerned in his or her possession for 10 years or more. It is up to the previous owner to prove that the current holder acquired the object in bad faith or that bad faith occurred during the 10-year period.14
A recent case that went up to the German highest court, the Federal Court of Justice, concerning a Purrmann painting gave occasion for the Court to issue some general guidelines regarding the burden of proof of the current holder when the current holder is defending a restitution claim by arguing that he or she acquired a work of art by possessing it in good faith for 10 years or more. The Federal Court of Justice emphasised that, despite the rather relaxed rules on burden of proof mentioned above, the current holder at least has to explain how he or she acquired the work. If this explanation proves to be wrong, he or she cannot claim that he or she acquired ownership through usucapion.15
ii Nazi-looted art and cultural property
In Germany, cases regarding Nazi-looted art are rarely litigated because there has usually either been good-faith acquisition or, if this is not the case, all limitation periods have expired. Regarding Nazi-looted art, there is no specific exception to the maximum limitation period of 30 years for ownership claims. This is much criticised as there is a high risk that a restitution case litigated in Germany will not be successful, mainly because of limitation periods and good-faith acquisition.
However, even today it is not at all impossible to successfully reclaim looted art, especially if the current holder is a public museum.
This is because after the Washington Conference, a 'common declaration of the federal government and the states to find and restitute Nazi-looted art' was signed and ever since it has served as 'soft law', according to which German museums have to respect the Washington Principles16 by way of 'self-obligation'.17
Many restitutions from public museums to heirs of Holocaust victims take place on this basis every year.
The following are selected examples of restitutions of Nazi-looted art that took place in 2020 and 2021.
- In January 2020, the Prussian Cultural Heritage Foundation returned a painting by Hans Baldung Grien to the heirs of the painter Hans Purrmann, who was persecuted by the Nazi regime as a 'degenerate' artist and was therefore forced to sell the painting because of his difficult financial situation in 1937.18 In April 2021, the Bavarian State Painting Collections returned a late medieval wooden panel to the heirs of A S Drey, a Jewish businessman and art collector who, in preparation for 'Aryanisation', had to sell the panel as part of paying back high tax debts in 1935 and 1936.19
- In May 2021, the German Federal Art Administration restituted a painting by Rudolf von Alt to the heirs of Malvine Stern (née Tafler), who fled back to her homeland in August 1938. Her application to export the painting was refused by Austria for the reason that the painting is a nationally valuable cultural asset. It was required for Hitler's Linz collection. Malvine Stern was later murdered in Hungary.20
- In May 2021, the Bavarian State Painting Collections returned an artwork by Joseph Wopfner to the heirs of its former owner, Alfred Isay. The painting was sold under duress due to the occupation of the Netherlands because the Isay family had to either go into hiding or were deported to concentration camps.21
- In June 2021, the Central and Regional Library Berlin returned a casebook looted during the occupation to the French Ministry of the Armed Forces. The book was seized by German occupation forces from the library of the Ministry of Air in Paris and passed on to the Institute for State Research.22
- In August 2021, the Bavarian State Painting Collections returned a painting by Johan Sperl to the heirs of Sigmund Waldes, an entrepreneur and art collector. After his emigration, Waldes's remaining assets in Germany, including the painting, were seized in January 1939 by the foreign exchange office of the Dresden Chief of Finance.23
If a matter regarding Nazi-looted art cannot be settled between the parties (e.g., between a museum and claiming heirs), there is a possibility for alternative dispute resolution to take place.
Following an agreement between the federal government and the German federal states, the Advisory Commission (the Commission) came into being in 2003 and since then has continued its work in a number of cases brought before it. On the basis of the Washington Principles and the 1999 common declaration on the restitution of Nazi-looted art24 mentioned above, the Commission issues advisory recommendations in restitution cases. Cases that involve works of art looted or otherwise taken from their owners between 30 January 1933 and 8 May 1945 under the terror regime of Nazi Germany can be brought before the Commission, which consists of 10 very senior, experienced and respected experts with backgrounds in law and the arts.
The recommendations are not legally binding but are usually followed by the parties involved; only 22 recommendations have been issued so far.
Both sides (mostly heirs of victims of Nazi Germany on one side and public art institutions such as museums and collections on the other) have to agree to mediation by the Commission and need to express their commitment to accepting the Commission's recommendation. After handing in an application (which needs to fulfil certain requirements, such as sufficient documentation of the dispossession), the Commission asks for written statements from the parties involved and first tries to reach an amicable solution. If this fails, the Commission calls for a hearing, during which the parties can again present their cases. The Commission then issues a recommendation on the basis of the Washington Principles. The recommendation can range from denying the application altogether to full restitution to the applicant, with various measures in between (payment of compensation, public display of the artwork's provenance, etc.).
As an example of how this works, in 2020 the Commission recommended that the Bavarian State Painting Collections restitute a painting by Jacob Ochtervelt25 but also stated that the Collection was due to receive half of the purchase price if the painting were sold by the heirs in the 10 years following restitution. Although the heirs had no legal claim to repossess the painting, the Commission recommended restitution, taking into account all the facts of the specific case along with moral and ethical considerations. However, the requirement to keep the painting for 10 years is an unusual restriction and this case was the first time such a restriction has been imposed on claimants.
In 2021, the Commission has issued four recommendations, three of which recommend restitution and one of which declined restitution of the artworks in question.
Because there are no special rules or explicit provisions regarding Nazi-looted art in relation to German limitation periods – a situation that is widely criticised – cases of Nazi-looted art are sometimes litigated abroad, even though they have a link to Germany or even concern cultural goods located in Germany. One example of this is the case of the Guelph Treasure, in which the Commission recommended that the treasure should not be returned to the claimants; the claimants did not want to accept this and are now litigating the case in the United States.26
Cultural property protection law
In 2016, German cultural protection law underwent a reform with the entry into force that year of the new Cultural Property Protection Act, following which German cultural property law has become more relevant and at the same time more bureaucratic.
The reform aimed at bringing together the two key aspects of protecting cultural property, which were previously regulated in two different acts: first, the protection of important national cultural property against removal from Germany27 and, second, the return of cultural property illegally removed.28 The new Cultural Property Protection Act therefore introduced a number of measures to govern the import, export and placing on the market of cultural property, as well as the return of unlawfully imported cultural property.
A key change was the introduction of the obligation to obtain an export licence for exporting works of art that exceed a certain age and a certain value, even within the EU's internal market (depending on the type of cultural property).
In the table below are the applicable age and value thresholds. An export licence is mandatory if these thresholds are met.
A licence will be granted if the item concerned is not included on the list of 'valuable national cultural property' or found to be of 'national importance'. In the latter case, the item will be put on the list as a valuable national cultural property 29 by an administrative act. Listed items can no longer be exported, unless their export is permitted (which is unlikely).
The process of listing can be started regardless of the age or value of the cultural goods.
|Categories||Export from Germany to outside the EU||Export from Germany to another EU country|
|Age (years)||Value (€)||Age (years)||Value (€)|
|1||Archaeological objects from excavations and archaeological finds on land or under water, from archaeological sites or archaeological collections||100||0||100||0|
|2||Elements forming an integral part of artistic, historical or religious monuments that have been broken up||100||0||100||0|
|3||Pictures and paintings (other than those included in categories 4 or 5) that do not belong to their creators||50||150,000||75||300,000|
|4||Watercolours, gouaches and pastels that do not belong to their originators||50||30,000||75||100,000|
|5||Mosaics (other than those included in categories 1 or 2) and drawings that do not belong to their originators||50||15,000||75||50,000|
|6||Original engravings, prints, silkscreens and lithographs with their respective plates and original posters that do not belong to their originators||50||15,000||75||50,000|
|7||Original sculptures or statuary and copies produced by the same process as the original (other than those in category 1) that do not belong to their originators||50||50,000||75||100,000|
|8||Photographs, films and negatives thereof that do not belong to their originators||50||15,000||75||50,000|
|9||Manuscripts including maps and musical scores/incunabula that do not belong to their originators||50||0||75||50,000|
|13 a)||Collections and specimens from zoological, botanical, mineralogical or anatomical collections||No age threshold||50,000||No age threshold||100,000|
|13 b)||Collections of historical, palaeontological, ethnographic or numismatic interest|
|14||Means of transport||75||50,000||150||100,000|
|15 a)||Any other antique items not included in categories 1–4||50–100||50,000||100||100,000|
|15 b)||Any other antique items not included in categories 1–14||100||50,000||100||100,000|
According to German cultural protection law, an item can only be legally imported into Germany if it has been legally exported from its country of origin.30 This is the case if all applicable legislation in the country of origin and all applicable international law has been respected. Sanctions in cases of non-compliance are severe (up to five years' imprisonment, fines and confiscation of the item).31
In addition, the law provides for public law repatriation claims in cases in which cultural property has been unlawfully removed from a sovereign state.32
As well as German national cultural protection law, there is European regulation in place,33 which, however, only applies to cultural objects that were created or discovered outside of the EU.34 It is forbidden to import objects that were illegally taken from their countries of origin. In addition, an import licence is required for all types of archaeological objects and parts of buildings, independently of their value, that were created more than 250 years ago. For certain other objects, a registration of the object and a self-declaration as to its legal origin suffices.
As mentioned above, the new Law provides for due diligence obligations when placing artworks on the market, which, as a result, make provenance research more important.35
Whoever puts cultural goods on the market should make sure that the goods are not stolen, illegally excavated or illegally imported. However, as far as non-professionals are concerned, further inquiry is only necessary if there are any suspicious circumstances.
Whoever puts cultural property into circulation in the exercise of his or her commercial activity is generally obliged to conduct additional due diligence: he or she has to establish the name and address of the seller, the consignor, the person acquiring the property or the client; to prepare a description and an illustration suitable for establishing the identity of the cultural property; to check the provenance of the cultural property; to examine documents proving lawful import and export; to examine prohibitions and restrictions on import, export and trade; to check whether the cultural property is registered in publicly accessible directories and databases; and to obtain a written or electronically transmitted declaration from the consignor or vendor that the latter is entitled to dispose of the cultural property.
According to the wording of the Law, it is forbidden to place any items on the market that were stolen, illegally excavated or illegally imported. Sales of such items are invalid.36 Thus, someone who places a work on the market must make sure that the work was not stolen, illegally excavated or illegally imported (i.e., they must inquire into the work's provenance) however, only to the extent that is economically reasonable.37 Works that are suspected of having been looted during the Nazi era (e.g., because they can be found in the database on the website www.lostart.de) can only be placed on the market once it is possible to eliminate this suspicion through provenance research or if a just and fair solution has been reached.
iii Limitation periods
There is no specific limitation period for art claims in German law – they fall under the general limitation periods governing all civil law claims.
The following general limitation periods are important in the context of art cases.
- Warranty claims regarding sales of goods are time-barred 30, five or two years following the transfer of the goods,38 and almost all cases concerning the sale of art will fall under the two-year clause.
- A declaration of will that was based on deceit can be contested for up to one year after the deceived person discovers the deception and up to, at the latest, 10 years after the declaration of will was given.39
- A claim of the owner of a work against the current holder of the work, who did not acquire any title (i.e., a claim against the possessor of a stolen item) is time-barred after 30 years after the loss of the item (i.e., the theft).40 However, if the possessor of the stolen item both acquired it and retained it in good faith for a period of 10 years, usucapion takes place after that 10 years and the original owner can no longer reclaim the stolen item.
iv Alternative dispute resolution
Alternative dispute resolution in the field of restitution has a certain tradition in Germany because of the existence of the Commission (see Section III.ii).
In recent years, alternative dispute resolution has also been discussed and put in place in areas of art law other than restitution. There are several arbitration bodies worldwide that deal with art-related cases from different angles, including the World Intellectual Property Organization (as far as intellectual property and copyright disputes are concerned) and the recently inaugurated international arbitration body specialising in art matters, the Court of Arbitration for Art, which is based in Rotterdam.41
In addition, certain national arbitration organisations such as the German Arbitration Institute have expressed an interest in alternative dispute resolution for art-related cases.42
Fakes, forgeries and authentication
Even prior to the spectacular Beltracchi case, which had its epicentre in Germany but affected dealers and collectors worldwide, the fear of fakes, forgeries and inauthentic art was, and remains, an issue in the art market. Forgeries raise complex legal questions, not only regarding criminal law.
According to the chapter in the German Civil Code dealing with the sale of goods, a thing is free from material defects if, upon the passing of the risk, the object has the agreed quality.43 Therefore, in the context of an authenticity issue, it becomes key to establish what exactly the parties have agreed upon regarding the authenticity of a work of art. Such an agreement does not necessarily need to be explicit, it can also be implied (e.g., by referring to expert opinion, a catalogue raisonné, an artist's signature or a certificate of authenticity during the sales negotiations or in a catalogue of an auction house). German courts, however, tend to focus on the exact details of the individual case and are sometimes hesitant to assume a binding agreement regarding the authenticity of an item. According to German law on sales of goods, if the quality (or, in this case, authenticity) has not been agreed upon, the object (or, in this case, the artwork) is considered to be free of material defects if it is suitable for its customary use and if its quality is usual in things of the same kind and the buyer may expect this quality in view of the type of the thing.44 To determine the quality that the buyer can expect, public statements made by the seller – again, references to expert opinion, a catalogue raisonné, etc. – can play an important role when assessing if a work of art is defective in the legal sense.45 If the item is defective, the buyer has an array of rights, most importantly the right to revocation of the agreement46 or to demand damages or reimbursement of futile expenditure.47
In addition to these specific remedies regarding a purchased item that is defective, the buyer can, according to the general rules of civil law, retroactively cancel his or her declaration of will under certain circumstances. Most relevant in the case of forgeries is the retroactive cancellation in cases of deception,48 a right that can be exercised for up to one year upon becoming aware of the deception and, at the latest, up to 10 years after having given the declaration of will (i.e., conclusion of the contract). The consequence of such a cancellation is the reversal of the transaction according to the civil law rules governing unjustified enrichment.49
i Private sales and auctions
There are no specific rules for private sales. Depending on the specific terms, the transactions for such sales can be legally structured in different ways, such as a simple sales contract or, if an intermediary is involved, as an agency or a commission, following the rules laid down in the Commercial Code.
From a legal perspective, one of the main differences between private sales and auctions is the fact that an auctioneer can transfer title to a good-faith purchaser when the item is sold at a public auction, even if the item was stolen.52 In a private sale, however, the buyer has more options for negotiating contractual guarantees.
ii Art loans
For works on loan in museums in Germany, there is the possibility of applying for immunity from seizure.
To 'immunise' artworks that are temporarily on loan for a public exhibition or other forms of public presentation (e.g., research purposes) against the possibility of being seized, the owner can apply for a legally binding commitment to return cultural property, which is issued by the highest federal authority (usually the Ministry of Culture of the federal state in which the work will be shown) in consultation with the Federal Government Commissioner for Culture and Media.53 The application for such a legally binding commitment needs to be submitted in a timely fashion before the cultural property is imported; the duration of immunity from seizure shall not exceed two years but can be extended to up to four years in justified exceptional cases.
The effects of such immunity from seizure are many and they do grant far-reaching protection.
No conflicting third-party rights to the cultural property may be asserted against the lender's right to the return of the cultural property, which guarantees far-reaching protection against seizures during its stay in Germany.
Legal action for recovery, arrest, attachment or seizure as well as official acts of enforcement or seizure are not permitted before the cultural property is returned to the lender.
Moreover, the legally binding commitment prevents the initiation of the process for entry in the register of cultural property of national significance.
No export licence is needed for the return of the property.
It is important to note that the administrative decision providing immunity from seizure may not be cancelled, withdrawn or revoked after being issued and is immediately enforceable for public authorities while the cultural property is located in Germany.
Public museums in Germany often arrange for a public law guarantee of reimbursement by the state in the event of loss or damage as an alternative to taking out insurance with an insurance company, if this is acceptable to the borrower.
iii Cross-border transactions
As far as international conventions and treaties are concerned, Germany is a signatory to the 1970 UNESCO Convention but did not sign the UNIDROIT Convention.
See Section III.ii regarding cultural property protection for a discussion of import and export restrictions.
As regards tax considerations regarding art acquired internationally, the following generally applies.
The current German basic VAT rate applicable to sales of artworks is 19 per cent (however, because of the pandemic, this was lowered to 16 per cent from 1 July 2020 until the end of 2020), unless an artwork is bought directly from the artist or the artist's heirs, in which case a VAT rate of 7 per cent applies (lowered to 5 per cent in 2020).54
If the seller is an entrepreneur whose turnover exceeds a certain threshold, any sale of goods that takes place in Germany is subject to German VAT. The sale of goods is regarded as taking place in Germany if the goods are located and sold in Germany.
For non-EU resident buyers, a VAT exemption applies in certain situations (assessed on a case-by-case basis) if the goods are bought in Germany and taken to the home country of the non-EU resident buyer or if the goods are delivered there directly.55
Deliveries to entrepreneurs in another EU country may, under certain conditions (assessed on a case-by-case basis), elect for an exemption, so that the sale is exempt from German VAT and the VAT of the other EU state applies instead.56
Import from a non-EU state might give rise to import VAT as well as customs duties.
Regarding customs duties, there is the possibility of temporarily importing artworks for less than 24 months without any customs duties being charged if they are being imported for public exhibition and sale.57
iv Art finance
Certain banks in Germany offer loans that have artworks as collateral. The legal structure used for the collateral is a pledge in most cases, which means that the artworks have to be stored with the bank. As there is no register of security interests in Germany and because of the possibilities of good-faith acquisition mentioned above, most banks refrain from using other legal structures that would allow the artwork to remain with the beneficiary of the loan. Some banks make exceptions in specific circumstances, however.
Similarly, some companies and dealers offer loans to their clients. If this is done on a regular basis, a banking licence might be required under certain circumstances.
The art trade as well as art storage warehouses are subject to the money laundering regulations of the updated German Anti-money Laundering Code,58 which transposes the new rules of the EU Fifth Anti-Money Laundering Directive into national law. In practice, this means a certain administrative burden for the art trade, such as the obligation for a photocopy to be made of the personal identification card or passport59 of any client involved in a transaction or series of connected transactions involving a value of €10,000 or more; the photocopy must be kept for five years60 after the end of the contractual relationship. If the buyer is a legal entity, not a natural person, it is necessary to inquire as to who is the ultimate beneficiary (known as the know-your-client check), to document this inquiry and keep the documentation for five years. In cases of doubt or if the ultimate beneficiary is not indicated in the transparency register, the art dealer must make enquiries with the national Financial Intelligence Unit.61
During 2020 and 2021, a steep rise in crypto art assets taking the form of NFTs took place, which involves several legal topics, such as copyright issues, contractual and e-commerce-related issues, questions regarding money laundering and bank regulatory issues, and tax issues. On 29 September 2021, the Regulation on Enhanced Due Diligence for the Transfer of Crypto Assets was published in the Federal Law Gazette. It entered into force on 1 October 2021 as a national transitional regulation, but will only remain legally binding until a new version of Regulation (EU) 2015/847 enters into force.
i Moral rights
According to German copyright law, the moral rights of the author consist of the rights:
- to publish a work for the first time;62
- to be named (or not to be named) as the author (attribution right);63 and
- to ensure that the work is not distorted.64
The moral right to ensure that a work is not distorted often plays a role in the context of works of architecture, if a building is later modified or changed, as well as with public artworks, especially if they are installed on buildings.
Moral rights expire 70 years after the author's death.
The issue as to whether removal and destruction of a work of art constitutes a distortion was highly disputed until 2019, with most scholars and case law being of the opinion that the owner of an artwork is free to destroy it, with destruction not being a form of distortion. This case law was changed in 2019: the Federal Court of Justice pointed out that the provision establishing the author's right of defence against distortion of the work65 protects the intellectual and personal interest of the artist regarding the sheer existence of the work and the Court came to the conclusion that the protective scope of this rule includes the right of the author to defend himself or herself against the destruction of his or her work, possibly even if the rightful owner wishes to destroy the work of art, albeit the owner's own property. So the Court made clear that the destruction of a work of art falls under the scope of Section 14 of the German Copyright Act, destruction being the most severe form of distortion. Therefore, it is now necessary to assess carefully in each single case whether the artist's moral right outweighs the owner's right to freely deal with his or her property.
ii Resale rights
In Germany, the artist or the artist's heirs are entitled to receive resale royalties for 70 years following the artist's death under the following conditions.
If the original of an artwork or of a photographic work is resold and if an art dealer or an auctioneer is involved as purchaser, vendor or intermediary, the vendor has to pay the author a share of the net selling price.66 If the vendor is a person acting in his or her private capacity, the art dealer or the auctioneer involved as purchaser or intermediary shall be jointly and severally liable in addition to the vendor; however, in the relationship between the vendor and art dealer or auctioneer, it is the vendor alone who shall be liable for payment.
This rule does not apply for sales of less than €400 or to architectural works and works of applied art.
The extent of the selling price share gradually decreases; it starts at 4 per cent for a selling price of up to €50,000 and goes down to 0.25 per cent where the selling price exceeds €500,000. The share cannot be more than €2,500, however, regardless of how high the selling price is.
To be able to assert a claim for resale rights, the law provides for a right to request the provision of information from an art dealer or auctioneer (e.g., the amount of the selling price) regarding past sales of the artist's work (during the past three years); this includes the name and address of the vendor, if necessary for the assertion of the claim. An art dealer or auctioneer may refuse to provide the name and address of a vendor if the dealer himself or herself pays the share to the author. Such an information request may only be made by a collecting society, which can even ask for access to the account books or to other documents if there is reasonable doubt as to the accuracy or completeness of the information provided.
iii Economic rights
German copyright law provides as a principle that the author of a work should be appropriately remunerated for its exploitation.
German copyright law67 provides for the following economic rights:
- the right to make a work available to the public;
- the right of distribution;
- the right of reproduction; and
- the right of broadcasting.
Generally speaking, each use of an artwork or its reproduction, other than exhibiting the artwork, requires the prior consent of the artist.
According to a case recently decided by the Court of Justice of the European Union,68 this is slightly different in the case of 'framing' (i.e., the direct embedding of works from another website by automatic links). According to the Court, framing only constitutes a copyright infringement if the copyright holder took technical measures to protect the content from being framed.
Reproduction rights as well as the broadcasting rights of artists are often administered by the German copyright collecting society, VG Bild-Kunst, or its international sister copyright collecting societies.
According to German jurisprudence, total buy-out contracts are regarded very critically and in most cases viewed as being invalid.
Trusts, foundations and estates
There are different options when it comes to keeping a collection or an artist's legacy together.
The classical option is to set up a private foundation. However, the assets of the foundation must guarantee that the foundation can pursue its purpose in a self-sustaining way. Therefore, and particularly in times of very low or even negative interest rates, it takes a considerable financial effort to set up a foundation. In addition, the foundation must have a long-term objective. In all, it can be said that a foundation is not necessarily the most flexible structure.
Alternatively, it is also possible to set up a limited liability company or an association or other type of entity.
All of these entities can, under certain conditions, apply for official non-profit status to be able to receive charitable gifts and obtain certain tax benefits. No gift tax or inheritance tax applies to gifts or bequests to non-profit organisations and non-profit museums.
To give or bequeath artworks can be beneficial as far as gift tax or inheritance tax (which are actually provided for in one and the same statute) is concerned: in general, the rate of gift tax or inheritance tax is currently levied at up to 30 per cent, or even 50 per cent in certain cases, depending on the asset and the degree of kinship of the parties. Transactions concerning art gifts or bequests of artworks can be exempted from the applicable tax to the extent of 60 per cent, or even 100 per cent under certain conditions, if there is a public interest in safeguarding the artworks and if they are publicly accessible for the purpose of educating the general public for at least 10 years.69
There is no such legal entity as an 'estate' in German law. If an artist or a collector, for example, dies without having provided for any of the options mentioned above, the heirs simply step into the shoes of the artist.70
Outlook and conclusions
Art law in Germany is a complex field, as very different kinds of general legal rules apply, stemming from civil law, commercial law, public law and criminal law, as well as certain special legal rules (e.g., those concerning cultural property) and external legally established rules, such as the Washington Principles. Art law in Germany is permanently evolving through case law and new legislation.
1 Katharina Garbers-von Boehm is a partner at Büsing Müffelmann & Theye.
2 Art Basel and UBS report, The Art Market 2020, p. 36.
3 id., p. 276.
4 Law on the Implementation of the Amending Directive of the 4th EU Money Laundering Directive.
8 § 40 ff German Cultural Property Protection Act (KGSG).
9 § 935, Paragraph 1 German Civil Code (BGB).
10 § 935, Paragraph 2 BGB.
11 § 935, Paragraph 2 BGB.
12 Federal Court of Justice, the German supreme court in criminal and private law matters (BGH), NJW 82-38; BGH NJW 91,1415, Palandt-Herler, 78. Aufl. 2019, § 932 Rn. 15.
13 § 1006 BGB.
14 § 937 BGB.
15 BGH, judgment dated 19 July 2019, Az. V ZR 255/17.
17 'Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes, insbesondere aus jüdischem Besitz (Gemeinsame Erklärung)', www.kulturgutverluste.de/Content/08_Downloads/DE/Grundlagen/Gemeinsame-Erklaerung/Gemeinsame-Erklaerung.pdf?__blob=publicationFile&v=15.
18 For details, see www.theartnewspaper.com/news/berlin-restitutes-painting-to-heirs-of-degenerate-artist-for-the-first-time; www.smb.museum/en/whats-new/detail/?tx_smb_pi1%5BnewUid%5D=930&cHash=4fe533e0f9dd0e9d95babdeb644cb2f5.
24 See footnote 16.
25 1 July 2020, Heirs of A.B. v. Bayerische Staatsgemäldesammlung (Bavarian State Painting Collections).
26 In July 2020, the US Supreme Court agreed to hear an appeal by Germany and the Prussian Cultural Heritage Foundation. However, in February 2021, the Supreme Court decided that cases concerning Nazi-looted art do not fall within the field of application of the expropriation exception to the Foreign Sovereign Immunities Act, which, inter alia, states that foreign sovereign states (and its agencies or instrumentalities) shall not be immune from the jurisdiction of courts in the United States in any case in which property was taken away in violation of international law. However, the case is not yet closed and will now return to the District Court.
27 See § 1 Nos. 1–3 KGSG.
28 See § 1 Nos. 4–6 KGSG.
30 § 28 KGSG.
31 §§ 83 ff KGSG.
32 § 49 ff KGSG.
33 Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods.
35 §§ 40 ff KGSG.
36 § 40 KGSG.
37 § 42 KGSG.
38 § 438, Paragraph 1, Nos.1–3 BGB.
39 § 123, Paragraph 1 BGB.
40 § 197 I No. 2, 200 BGB.
42 In 2018, the Institute's international autumn conference was exclusively dealing with ADR in art-related matters.
43 § 434 I S. 1 BGB.
44 § 434 I S. 2 No. 2 BGB.
45 § 434 I S. 3 BGB.
46 § 437 No. 2 BGB.
47 § 437 No. 3 BGB.
48 § 123 BGB.
49 § 812 ff BGB.
50 § 34b, Paragraph 1, General Administrative Business Regulation (Gewerbeordnung).
51 Auctioneer Regulation of 24 April 2003 (Versteigererverordnung) (BGBI, p. 547), last amended by Article 101 of the Act of 29 March 2017 (BGBI, p. 626).
52 § 935, Paragraph 2 BGB.
53 § 73 ff KGSG.
54 § 12, Paragraph 2, No. 13 German VAT Tax Code (UStG).
55 § 4 No. 1(a) UStG in connection with § 6 UStG.
56 § 4 No. 1b UStG in connection with § 6a UStG.
57 With an ATA carnet or without the ATA proceedings; in the latter case, generally a security has to be provided.
58 § 2, Paragraph 1, No. 13 of the German Anti-money Laundering Code (GWG).
59 § 12 GWG.
60 § 8 GWG.
61 Financial Intelligence Unit; see § 27 ff GWG.
62 § 12 German Copyright Act (UrhG).
63 § 13 UrhG.
64 § 14 UrhG.
65 § 14 UrhG.
66 § 26 UrhG.
67 § 15 ff UrhG.
68 VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz, Case C-392/19 ECLI:EU:C:2021:181.
69 § 13, Paragraph 1, No. 2(a) and (b) Inheritance Tax and Gift Tax Law.
70 § 1922 BGB.