Authorities

According to the distribution of powers established in the Spanish Constitution, the Ministry of Culture plays a central role in the protection, promotion and regulation of Spain’s cultural heritage, and holds exclusive competence in the export and import of cultural goods. It is involved in enforcing laws related to art and cultural property, managing museums, and supporting the visual arts.

The 17 autonomous communities (regions), on the other hand, have competence in cultural policies and the procedures for declaring goods located in their respective territories as part of the protected categories of historical or artistic heritage. Thus, in the event that the Ministry of Culture denies an export permit for an artwork, it is the competent autonomous community that must initiate the procedure to include the item in an inventory of protected goods; this can generate some conflicts.

Regulations

With regard to regulations, the Cultural Heritage Protection Law (Law 16/1985) and its implementing regulations (Royal Decree 111/1986) define and protect Spain’s historical and cultural heritage, including art objects, museums, and collections. The law addresses issues such as the export of artworks, the protection of national treasures, and the role of public and private institutions in preserving cultural heritage. In addition, there are 17 regional heritage laws in each of the 17 autonomous communities ‒ each with distinct characteristics and applicable within their respective territories.

The author of an artwork is entitled ‒ by the mere fact of creation and as the author of other works – to the rights established in the Spanish Copyright Law, which are:

• economic rights – reproduction, distribution, public communication and transformation; and
• moral rights ‒ acknowledgment of authorship, publication of the work, respect for the integrity of the work and withdrawal from the market.

Moral rights are unwaivable and non-transferable and may be exercised by the artist’s heirs upon the artist’s death.

Specifically, the authors of works such as sculpture, painting and photography have the resale right (droit de suite) and the right to fair compensation for private copying.

The Spanish Copyright Law regulates collective works and collaborative works.

A collective work is a work created by the initiative and under the co-ordination of a natural person or legal entity that publishes and disseminates it under its name and is constituted by the gathering of contributions of different authors whose personal contribution is based on a single and autonomous creation, for which it has been conceived without it being possible to attribute separately to any of them a right over the whole of the work. Unless otherwise agreed, the rights in the collective work shall belong to the person who publishes and disseminates it under their name. This allows legal entities to hold the copyright on the work.

A collaborative work is the unitary result of the collaboration of several authors ‒ although the different contributions can be identified and differentiated so that, unless otherwise agreed or with prejudice to the common exploitation, each author may separately exploit their contribution. The exercise of the rights in collaborative works must be made by common agreement and the participation of each author shall be in the agreed proportion. The rules of co-ownership shall apply subsidiarily.

Copyright infringement may be considered a violation of civil and criminal law.

The Spanish Copyright Law establishes rules for the cessation of the infringing activity, including the removal of infringing products or services and of the means used for the infringement, including their destruction. In addition, the damages caused must be compensated, using one of the following criteria: profit obtained by the infringer, profit lost by the right-holder, or theoretical royalty that the infringer would have had to pay were they an authorised licensee. In addition, moral damages may be claimed, depending on the circumstances and gravity of the infringement.

The criminal code establishes penalties of between two and four years for the infringement of rights over a work, including plagiarism. When there are special circumstances, such as the seriousness of the infringement or its commission by criminal organisations, the penalty may be increased to six years. In any of the above-mentioned cases, fines are also imposed on the infringer. The civil liability derived from the offence is governed by the rules of the IP Law indicated earlier.

The Copyright Registry allows the registration of any work protected by copyright. It is a public office, under the Ministry of Culture, with offices in the different regions of Spain. In the case of works of art, the author must identify themselves and provide a photographic copy of the work to be protected. The registration can be done in person at any of the territorial offices of the Copyright Registry or the work can be registered telematically. It is a simple and inexpensive procedure for the author.

The authors of works of art of all kinds, as well as their heirs, have a recognised right of participation in the price of the resale of their works. The right applies to all resales involving professionals such as sales or auction rooms, art galleries, art dealers, and ‒ in general – anyone engaged in intermediary operations in this market, either in person or online.

The amount of the author’s participation is between 4% for the first EUR50,000, up to 0.25% for sales prices in excess of EUR500,000. The maximum amount may not exceed EUR12,500. Exceptions are made for the value of the resale (less than EUR800) and for time (ie, resale made by a gallery owner who has purchased the work within a period of less than three years, for an amount of less than EUR10,000).

The right is extinguished 70 years post mortem auctoris and must be exercised through collecting societies.

In principle, it is the author who must authorise the use of images. If the owner of the work has this right assigned by the author, the owner could be the one that gives the authorisation. However, the author may have entrusted the management to a collective management entity. In Spain, it is VEGAP (Visual Entidad de Gestión de Artistas Plásticos) who does it – globally – in collaboration with other collecting societies in other countries, in the same way that it manages the rights of foreign authors in Spain.

Under Spanish law, there are no specific regulations that determine who must or may carry out the authentiction of artworks. The main parties that may have this authority include the following.

• Legal heirs or the executor of the estate – if the artist left a will, the designated executor or heirs (estate/legacy) may assume the responsibility for authentication, especially if explicitly granted this authority and if included within their services.
• Foundation or authentication committee – some artists establish a foundation or committee during their lifetime to manage their legacy and authenticate their works after their passing.
• Experts and scholars – art historians, specialists in the artist’s work, or those compiling the catalogue raisonné may be recognised as authorities in authentication.

• The art market and auction houses ‒ to determine authenticity, some galleries or auction houses rely on the opinions of experts, former representatives of the artist, or institutions that worked closely with the artist.

As a result, it is common practice to include liability clauses regarding authenticity in art sale contracts, in accordance with the applicable Spanish regulations (see 4.3 Legal Remedies Following a Declaration of Inauthenticity).

Under Spanish law, there is no specific regulation that compels a foundation ‒ or any other entity or person entitled to exercise moral rights ‒ to include a particular artwork in the artist’s catalogue raisonné or to issue a favourable opinion regarding a certificate of authenticity. As stated in 2.1 Artists’ Rights Over Their Art, moral rights – as recognised under the Spanish Copyright Law ‒ grant the artist (and, after their death, their heirs), in general, the authority to protect the integrity and attribution of their works. However, these rights do not necessarily impose an obligation to authenticate or recognise a specific piece. Additionally, authentication decisions often fall within the discretion of the entities or experts responsible for the artist’s legacy (among others), and conflicting opinions may arise within the art market.

In cases where purchased artworks are declared inauthentic after the purchase, the available civil remedies include the redhibitory action, the quanti minoris action, and the action for damages for breach of contract. These actions allow the buyer to rescind the contract, obtain a reduction in the price or claim damages, respectively.

• Redhibitory action ‒ this allows the buyer to withdraw from the contract if the purchased item has hidden defects that render it unsuitable for its intended use or significantly diminish its value in such a way that the buyer would not have acquired it or would have paid less for it. This action is regulated by Articles 1484 et seq of the Civil Code.
• Quanti minoris action – this action allows the buyer to request a reduction in the price paid for the item, proportional to the decrease in its value due to hidden defects. It is also regulated by Articles 1484 et seq of the Civil Code. The applicability of both the redhibitory and quanti minoris actions depends on the nature of the defect and whether it was hidden at the time of purchase.
• Action for damages for breach of contract – if the seller acted in bad faith, the buyer may claim compensation for the damages suffered. This action is based on Article 1101 of the Civil Code. To claim compensation for damages, the buyer must prove that the seller acted in bad faith, which can be a significant obstacle in practice.
• Resolutory actions for breach of contract – according to Article 1124 of the Civil Code and the jurisprudential doctrine of aliud pro alio, the buyer may rescind the contract if the item delivered is entirely different from what was agreed upon.

These actions are subject to different legal regimes and limitation periods, which is crucial to consider when taking legal action.

According to Article 1 of the Cultural Heritage Protection Law, “Spanish historical heritage” is a broad and poorly defined concept, as it includes immovable and movable property of artistic, historical, paleontological, archaeological, ethnographic, scientific or technical interest. It also encompasses documentary and bibliographic heritage, archaeological sites and areas, and subaquatic assets, as well as natural sites, gardens, and parks that hold artistic, historical or anthropological value. In addition, “intangible cultural heritage” is considered part of Spanish historical heritage, in accordance with its specific legislation.

Notably, Spanish law does not impose criteria based on antiquity, territorial origin, or authorship, or other criteria for an asset to be declared part of Spanish historical heritage. Instead, the law establishes different categories of protected assets, as follows.

• The highest level of protection applies to immovable and movable property declared as assets of cultural interest (bienes de interés cultural, or BIC), which are registered in the General Register of Assets of Cultural Interest.
• A secondary level of protection applies to movable property included in the General Inventory of Movable Assets.
• A general category includes assets that, although not falling under the two aforementioned protection levels, could be still part of Spanish historical heritage because they are more than 100 years old.

In summary, Spanish law provides a broad and flexible framework for the protection of cultural heritage, ensuring that a wide range of assets ‒ both tangible and intangible ‒ can be preserved for their historical, artistic or cultural significance.

The artworks and other movable property declared as BIC and those included in the General Inventory of Movable Assets shall be imprescriptible and in no case shall the acquisition by adverse possession apply to such property. The same applies to BIC property and those included in the General Inventory of Movable Assets that are in the possession of ecclesiastical institutions, in any of their establishments or premises. The latter may not be transferred for valuable or gratuitous consideration, nor be transferred to individuals or commercial entities. Such property may only be alienated or transferred to the State, public law entities, or other ecclesiastical institutions.

In the case of archaeological items, all objects and material remains that possess values characteristic of Spanish historical heritage and are discovered as a result of excavations, earth removals, or works of any kind (or by chance) are considered public domain goods. The discoverer has the obligation to notify the competent administration of their discovery within a maximum period of 30 days, and immediately when it comes to accidental finds ‒ although each regional law may establish a different period. The discoverer and the owner of the location where the item was found have the right, as a cash reward, to half of the value attributed to the item in a legal appraisal and this will be distributed equally between them. If there are two or more discoverers or owners, the same proportion will be maintained.

In the case of other types of cultural heritage, the autonomous community (region) has the authority to declare the item as a BIC or as an item in the General Inventory of Movable Assets and the asset cannot be transferred, sold or exported without the consent of the Ministry of Culture. The public administration does not automatically acquire ownership of the item, but it has the power to claim its custody, conservation, and management. It may even declare the item unexportable by ministerial order, while the process of its declaration as a BIC or as an item in the General Inventory of Movable Assets is underway.

An art sale contracts typically includes several key clauses to ensure a clear and legally sound transaction. The main clauses are as follows.

• Description of the artwork – this includes details such as title, artist, dimensions, medium, provenance, and any relevant certificates or documentation.
• Payment terms – these define the purchase price, payment method, and schedule. If escrow accounts or other similar financial instruments are used, specific provisions are included to regulate their operation and conditions for releasing funds.
• Authenticity and title guarantees – the seller provides warranties of authenticity for the artwork and guarantees their legitimacy to sell it, ensuring there are no third-party claims or encumbrances on the piece.
• IP rights –  this clause clarifies whether any IP rights are transferred with the artwork or if the artist retains rights such as reproduction or exhibition rights.
• Confidentiality clause – this ensures that confidentiality is maintained regarding the transaction terms, the identities of the parties, and any related information.
• Delivery and risk transfer – this clause establishes the method and timeline for delivering the artwork and when the risk and responsibility transfer to the buyer.
• Dispute resolution and governing law – this clause specifies the applicable law and mechanisms for resolving disputes, such as arbitration or court jurisdiction.

These clauses (together with others) help protect both parties and ensure a secure transaction, particularly in high-value art sales.

Spanish legislation is highly protective of the exportation of cultural goods. There are three types of exportation requests ‒ namely, “definitive”, “temporary with an option for sale”, and “temporary”. The law establishes two systems based on the destination of definitive exports, as follows.

• When the exportation is destined for the EU – all goods older than 100 years and of historical or artistic interest must request an export permit, regardless of their economic value. This requires the Ministry of Culture to receive thousands of exportation requests annually. Goods that have been declared BIC are always unexportable, whereas goods listed in the General Inventory of Movable Assets also require an export permit (even if they are less than 100 years old).
• When the exportation is destined for outside the EU – Regulation (EC) 116/2009 of the Council of 18 December 2008, concerning the exportation of cultural goods, applies. It establishes that export permits are required for goods between 50 and 100 years old, provided their value exceeds the following amounts:

1. paintings – EUR150,000;
2. sculptures – EUR50,000;
3. watercolours and pastels – EUR30,000; and
4. drawings, prints, and photographs – EUR15,000.

Goods between 50 and 100 years old that fall below these amounts must request an export permit, but they will be provided with a certificate from the Ministry of Culture certifying to customs authorities that the item does not require an export licence.

In the case of granting a definitive export permit to a country outside the EU or a temporary permit with an option for sale if the sale occurs, a fee is applied, with the tariff gradually increasing based on the declared value of the good. This fee ranges from 5% to 30% for values exceeding EUR600,000. It is a very burdensome fee and widely contested by the art market and collectors, as no other country in the European region has a fee of this nature.

When the Ministry of Culture denies the exportation, the public administration reserves the right of preferential acquisition at the price declared in the export request, which it may exercise within six months from the denial of the permit. However, neither the Ministry of Culture nor the autonomous community has the obligation to acquire the item whose exportation has been denied, nor do they have the obligation to compensate or indemnify the owner. This implies that the sale price in the Spanish market drops significantly due to the inability to export or sell the item outside of Spain.

In the case of illegal exportation (ie, if the permit has not been requested or obtained), the Law on the Suppression of Smuggling establishes sanctions ‒ both administrative and criminal ‒ for individuals involved in smuggling activities with cultural heritage. It includes penalties such as fines, prison sentences, and confiscation of goods for individuals caught engaging in smuggling activities.

Finally, it should be noted that there is a regime for protected imports that applies when a cultural property older than 30 years is legally imported into Spain, through its customs declaration and the submission of a specific request within three months of its entry into Spain. The Ministry of Culture offers such goods a regime under which the item cannot be declared BIC nor have a definitive export permit denied for a period of ten years, renewable for equal periods of duration, provided that the request is made within the established time limits and in the manner regulated. This allows collectors to bring goods acquired outside Spain into the country in order to benefit from this favourable regime.

Under Spanish law, gallery owners and auction houses may face several liabilities when selling inauthentic or plagiarised artworks, primarily under the following.

• The Spanish Retail Trade Law – as per this legal body, auction sale offers must provide a truthful description of items, clearly stating whether their qualities are verified or merely assumed (or attested by an expert). In specialised art or valuable object auctions, any imitations or items that appear valuable but are not must be explicitly disclosed. Items offered with an artist’s name or signature are considered original unless clear warnings are provided. Moreover, if the items do not conform to their description or have hidden defects (eg, inauthentic or plagiarised artworks), the auction house is jointly liable with the owner for failing to meet its disclosure obligations.
• The Spanish Consumer Protection Law – if the buyer is considered a consumer, they may claim their rights under this law, which protects against deceptive or fraudulent sales practices.
• Contractual liability – if the sale contract includes a warranty of authenticity, the gallery or auction house may be held contractually liable for breaching this obligation. Buyers could sue for rescission of the agreement and damages.
• Criminal liability – if a seller knowingly sells a forged artwork as an authentic piece, they may be committing (among other things) fraud under Article 248 of the Spanish Penal Code.
• Copyright infringement – if an artwork is plagiarised, the original artist or rights-holders may take legal action for copyright infringement, potentially leading to financial penalties and the withdrawal of the artwork from the market.

Before offering artistic goods for sale, auction houses and galleries in Spain must carry out thorough due diligence, including verifying the artwork’s provenance, ensuring compliance with export laws and cultural heritage protection regulations, confirming that it is not stolen or illegally trafficked, checking for BIC or inventoried status, and ensuring tax and documentation compliance, as follows.

• They must ensure that the artwork has a clear and verifiable provenance to confirm that it has not been illegally removed from its country of origin or is not subject to restitution claims, especially claims related to the confiscations from the Spanish Civil War.
• They need to verify that the person offering the artwork for sale has legal ownership and the right to sell it and that there are no legal disputes over ownership.
• They must ensure compliance with export regulations by verifying that an export licence has been granted or that the item is exempt from such a requirement. They must specifically check for BIC status – goods declared as BIC cannot be exported ‒ and they must also check for registration in the General Inventory of Movable Assets to ensure that the appropriate permissions are in place for sale or export.
• They must consult national and international databases of stolen art (including Spain’s own Art Loss Register) to ensure that the piece is not stolen or illegally exported.
• They must verify the authenticity of the artwork through expert assessments, certificates of authenticity, or provenance records. They bear legal responsibility in cases where they mediate in the sale of a non-authentic artwork, which could be annulled depending on the conditions, provided the legally established statute of limitations has not expired.

Under Spanish law, there is no specific legal responsibility for art advisers beyond their civil contractual liability for the tasks they are hired to perform. Their duties and potential liabilities depend on the contractual agreement with the client. Furthermore, the scope of their liability may also be influenced by the professional liability insurance they hold.

However, if the adviser acts in bad faith or is involved in fraud, criminal proceedings may be initiated, depending on the circumstances. These situations would open the relevant criminal legal channels to address the wrongdoing.

Moreover, in Spain, there is no specific and unique code of ethics for art consultants and advisers at a national level. However, they may be subject to ethical and deontological standards set by professional organisations or chambers of commerce related to the art field – although these codes are not legally binding. These codes can include aspects such as transparency and honesty in art advisory services, confidentiality with client information, or avoiding conflicts of interest.

The regulations on the prevention of money laundering and the financing of terrorism ‒ as well as the application of the protocols required by law ‒ pose a challenge for galleries and auction houses in Spain, which are characterised by the small size of their staff. The law mandates the implementation of due diligence procedures, including KYC and enhanced diligence for transactions exceeding EUR1,000, despite the fact that the Fifth AML Directive 2018/843 sets controls for individual transactions starting at EUR10,000. This results in an increase in costs due to the size of their operations.

The Cultural Heritage Protection Law regulates the protection of documentary heritage, as well as archives and libraries.

Regarding documentary heritage, it includes documents older than 100 years that are generated, preserved, or collected by any other private entities or individuals. It also includes documents older than 40 years that are generated, preserved or collected in the course of activities by political, trade union, or religious entities and associations, as well as by private cultural and educational entities, foundations and associations.

Bibliographic heritage includes public libraries and bibliographic collections, but also all literary, historical, scientific, or artistic works of a unitary or serial nature ‒ in manuscript or printed form – for which there are no records of at least three copies in public libraries or services. It is presumed that this number of copies exists for works published from 1958 onwards.

The same regime applies to copies produced from editions of cinematographic films, records, photographs, audiovisual materials, or similar items ‒ regardless of their material format ‒ for which there are no records of at least three copies in public services (or one copy, in the case of cinematographic films).

The regional laws on historical heritage provide for the declaration of entire collections as BIC. However, in the case of groups or collections of movable property, the resolution must list and individually describe each of the elements or groups of elements that make up the collection.

Documentary heritage and artistic, historical or bibliographic collections are subject to the same heritage protection regulations, regarding both their exportation and the obligations of their owner for their preservation.

Photographic works are expressly mentioned in Spanish law as a possible object of IP rights, so they enjoy the same rights as other works, according to the previous comments. Like any other work, they must comply with the requirement of originality and creativity and the courts have ruled on many occasions in this respect, mainly to distinguish them from mere photography. The Supreme Court has indicated that, in photography, creativity implies the contribution of an intellectual effort (ie, talent, intelligence, ingenuity, inventiveness or personality) that turns the photograph into an artistic or intellectual creation. The uniqueness does not lie in the photographic object ‒ not even in the mere technical correctness – but in the photograph itself, in its creative dimension.

Spanish law grants protection to what it calls mere photography, which are photographs that do not meet the requirements of a photographic work. Spanish law has not wanted to leave these photographs unprotected and recognises their documentary, journalistic, scientific, historical or commercial value ‒ attributing to them the rights of reproduction, distribution and public communication, but not the right of transformation or moral rights. This protection lasts for 25 years from January 1 following the date of publication.

There is no legal definition of an NFT in Spain; the doctrine and the courts have used and admitted the definition and characterisation given internationally. The Spanish Copyright Law does not establish a numerus clausus as to protectable works, so the NFT will be considered as a work as long as it complies with the requirements of originality and creativity that are demanded of other works.

Inauthentic or counterfeit NFTs are not to be circulated. If an NFT is a work of art, it enjoys the same rights as other works and may be subject to the same civil and criminal actions mentioned previously.

The generational transfer model for artworks can be either a foundation that manages the collection owned by the heirs (Spanish foundations are different to those used in other jurisdictions pro generational transfer), the co-ownership of the collection with certain rules or family-owned companies with shareholders’ agreements, or succession previsions included in the will.

Successions are subject to the rules of the Civil Code and the regional laws, which ‒ depending on the region – allow or do not allow a limited freedom of disposal by the collector.

Inheritance and gift tax applies to artworks. There is a succession tax on artworks, with regional regulations. Some of these regulations grant important reductions for artworks in the event of inheritance from the author, whereas other regulations grant a general reduction for descendants and ascendants that drops the effective rate below 1%.

There is an exemption of assets attached to an economical activity of the deceased that could be applicable and, as explained in 10.3 Tax Implications of Artwork Gifts and Donations, regional regulations provide significant reductions for artworks in the event of inheritance from the author.

Spain is not a party to the Hague Convention on the Law Applicable to Trusts and their Recognition of 1 July 1985 and trusts are not recognised in Spanish legislation. Therefore, although artworks can be placed in a foreign trust, the trust cannot be used to circumvent mandatory rules (eg, those affecting succession) and the lack of recognition implies a certain degree of uncertainty – for example, in relation to its tax treatment.