BASHAM NEWS

SCJN Upholds Resale Royalty (“Droit de Suite”) for Artists and Photographers

August 19, 2026

Matter: Review of Amparo Action No. 1599/2026, Full Bench of the Supreme Court of Justice of the Nation (SCJN)

Summary

The Full Bench of the SCJN upheld the validity of the tariff scheme established by Mexican Copyright Office (INDAUTOR), which requires authors of visual art and photographic works to receive an economic participation each time their works are resold at public auction, through a commercial establishment, or with the intervention of a commercial agent (the “resale right” or droit de suite, provided for in Articles 92 Bis and 212 of the Federal Copyright Law). The Court further confirmed that this right also applies to photographers, and not only to authors of visual artworks.

Background

An art auction house challenged INDAUTOR’s resolution dated January 19, 2023, establishing the final tariff scheme for the resale royalty. The key stages of the litigation were as follows:

On January 27, 2020, a collective management organization requested that INDAUTOR initiate the procedure to establish such tariffs.
On December 20, 2022, INDAUTOR rejected the auction house’s proposed modifications and issued the final tariff scheme.
On April 30, 2025, the auction house obtained a judgment declaring the resolution null and void in contentious administrative proceedings.
INDAUTOR and the collective management organization filed an amparo action. On December 11, 2025, the Collegiate Circuit Court overturned the nullity judgment and denied amparo relief to the auction house.
The auction house sought review before the Full Bench of the SCJN, which admitted the appeal because it involved a potential conflict between Mexican law and the Berne Convention.

Arguments Raised by the Auction House

That the law cannot delegate to INDAUTOR, as an administrative authority, the power to establish the tariffs, because the Berne Convention allegedly requires the tariffs to be established directly by law.
That Article 92 Bis of the Federal Copyright Law violates Article 20.66 of the United States-Mexico-Canada Agreement (USMCA).
That photographic works are not “original works of art” and, therefore, should not be subject to the resale right.

Court’s Decision

1. Delegation of tariff-setting authority to INDAUTOR is valid.

The Berne Convention requires national legislation to establish the terms and conditions for collecting the resale right and the amount thereof, but it does not require the exact tariff to be expressly set forth in the statute. It is therefore valid for the law to recognize the right and authorize a specialized administrative authority, such as INDAUTOR, to establish the applicable tariffs through a regulated procedure, provided that such authority has an express legal basis, as is the case under Articles 92 Bis and 212 of the Federal Copyright Law.

2. Photographers are protected.

The Berne Convention itself recognizes photographic works as protected artistic works, without distinguishing them from other visual artworks. Accordingly, excluding photographic works from the resale royalty would place photographers in an unjustifiably unequal position vis-à-vis other visual artists.

3. There is no conflict with the USMCA.

This argument was dismissed on technical grounds: the appellant failed to challenge the reasoning of the Collegiate Circuit Court, which had already explained that the USMCA governs the transfer of rights in a work, which is a different matter from the right to receive an economic participation upon resale.

4. Final decision.

The Full Bench upheld the appealed judgment, denied amparo relief to the auction house, and declared the related cross-appeals filed by INDAUTOR and the collective management organization moot.

Impact

Auction houses, galleries, dealers, and commercial agents must continue withholding and remitting the applicable tariff-based royalty on each commercial resale of artistic and photographic works. Failure to pay cannot be justified on the grounds that the statutory scheme is incompatible with international law.
Photographers and their successors in title are confirmed as beneficiaries of the resale right on the same terms as authors of visual artworks, thereby expanding the category of rights holders entitled to claim such royalties.
INDAUTOR’s administrative procedure for establishing and updating tariffs, proposal, publication as a draft, 30-day comment period, and final publication, is validated as a legitimate mechanism, without requiring legislative reform.
The USMCA incompatibility argument is, at least at this stage, no longer a viable defense against payment of the resale royalty.
Given that the decision was issued by the Full Bench on a matter of exceptional constitutional and international-law significance, it is foreseeable that the ruling will result in an isolated or binding precedent that may guide lower courts in similar cases.

Suggested Next Steps

We remain available to review with you the specific impact of this ruling on your operations, including the review of consignment agreements, internal policies concerning the withholding of resale royalties at auctions, and defense strategies in proceedings before INDAUTOR, as well as to monitor the formal publication of the precedent arising from this case.

Sincerely,

Juan Carlos Hernández

jhernandez@basham.com.mx