The idea of moral rights continues to be a notable difference between European and American intellectual property rights with respect to visual arts. Last week’s decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by artist Chuck Close and others addressing the California Resale Royalty Act (the CRRA) underscores those distinctions. In holding that the CRRA is mostly preempted by federal copyright law and thus can be applied to entitle artists to secondary royalties only for sales of art in a single calendar year—1977—the 9th Circuit affirmed the skepticism with which American law continues to regard anything other than classic copyright. Given the failure of efforts to pass national legislation to provide for resale royalties, this decision is probably the end of the line for the foreseeable future in the U.S. for droit de suite, the term of art used to describe the concept.
There is, for better or worse, clearly no political constituency for resale royalties in the U.S. As I told Law360, and as we’ve opined before about the Visual Artists Rights Act of 1990 (VARA), property rights are in many ways a quintessential American policy. We all reflected on the Declaration of Independence last week, and its proclamation of the primacy of Life, Liberty, and the Pursuit of Happiness—which revised John Locke’s famous statement that governments are instituted to secure “life, liberty, and property.” Copyright is and always will be a limitation on absolute ownership, but Americans guard those limitations jealously. There is little sign that will soon change.
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Topics:
American Royalties Too Act,
Chuck Close,
Commerce Clause,
Visual Artists Rights Act of 1990,
Christie's,
Cal. Civ. Code § 986(a),
VARA,
Rep. Jerrold Nadler (D-NY),
Dormant Commerce Clause,
Preemption,
droit de suite,
California Resale Royalty Act,
U.S. Constitution,
Sotheby's,
eBay,
CRRA,
Declaration of Independence,
Copyright Act of 1976,
Morseburg v. Baylon,
John Locke,
Supremacy Clause,
1909 Copyright Act
Twice in the last four years, a bill has been filed to adopt what is known as droit de suite, or resale royalty, in which an artist would be entitled under certain circumstances to a royalty on sales after the initial one. The most common justifications for these bills relate to fairness and uniformity. As to the first, many artists’ works do not become valuable until later in their careers, long after the works had been sold first. These artists, the argument goes, should share in the benefit of their increased regard. The uniformity argument has to do with droit de suite in other countries, though that is hardly a clear picture and many residents of those countries object to what they say is the effect on their local markets.
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Topics:
Equity for Visual Artists Act of 2011,
Resale Royalties,
Ed Markey,
American Royalties Too Act,
Chuck Close,
Resale Royalty,
Jerrold Nadler,
Christie's,
Tammy Baldwin,
California Resale Royalties Act,
Copyright,
United States Copyright Office,
Sotheby's,
eBay,
Art Law Report
Art Law Day at the Appraisers Association of America’s annual conference is next Friday, November 7, 2014 at NYU's Kimmel Center. Sullivan & Worcester LLP will be sponsoring the event as a Friend of Art Law Day this year, about which we are very excited.
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Topics:
The Changing Laws for the Sale of Endangered Speci,
Monica Kreshik,
NYU SCPS,
International Director of Restitution,
The Frick Collection,
miGavel Auctions/Lark Mason Associates,
Resale Royalties,
Pollock-Krasner Foundation,
Betty Krulik Fine Art Limited,
American Royalties Too Act,
Michael McCullough,
Pearlstein & McCullough LLP,
authentication,
IRS/Tax Free Exchange,
Richard Levin,
New York University,
American Alliance of Museums,
Suzanne Goldstein Baker,
U.S. Fish & Wildlife Service,
Cravath Swaine & Moore LLP,
Art Law Day,
Department of Environmental Conservation,
Ulf Biscof,
New Legislation for Authentication Experts,
Baker Tilly Virchow Krause LLP,
Jerrold Nadler,
Christie's,
Appraisal,
Detroit Institute of Arts,
Amy Goldrich,
Betty Krulik,
Restitution,
Randi Schuster,
Events,
Christopher Marinello Art Recovery International L,
Cahill Partners LLP,
Elizabeth von Habsburg Winston Art Group,
Monica Dugot,
Copyright,
Appraisers Association of America,
Marianne Rosenberg,
Terry Shtob,
Antiquities,
Ford W. Bell,
Craig Hoover,
Bankruptcy and the Detroit Institute of Arts,
Lark Mason,
Kimmel Center,
Wildlife Trade and Conservation Branch,
Detroit Bankruptcy,
Diane Wierbicki,
Investment Property Exchange Services,
Samuel Sachs II,
Biscof & Paetow Rechtsanwälte,
Withers Bergman LLP,
Judith Bresler,
Paul Rosenberg
Art Law Day at the Appraisers Association of America’s annual conference is now less than a month away. Held at the NYU Kimmel Center, this year’s event will be held on Friday November 7, 2014. Sullivan & Worcester LLP is excited to be a Friend of Art Law Day this year.
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Topics:
Legislation,
The Changing Laws for the Sale of Endangered Speci,
Monica Kreshik,
NYU SCPS,
International Director of Restitution,
The Frick Collection,
miGavel Auctions/Lark Mason Associates,
Resale Royalties,
Pollock-Krasner Foundation,
Betty Krulik Fine Art Limited,
American Royalties Too Act,
Michael McCullough,
Pearlstein & McCullough LLP,
authentication,
IRS/Tax Free Exchange,
Richard Levin,
New York University,
American Alliance of Museums,
Suzanne Goldstein Baker,
U.S. Fish & Wildlife Service,
Cravath Swaine & Moore LLP,
Art Law Day,
Department of Environmental Conservation,
Ulf Biscof,
New Legislation for Authentication Experts,
Baker Tilly Virchow Krause LLP,
Christie's,
Appraisal,
Detroit Institute of Arts,
Amy Goldrich,
Betty Krulik,
Restitution,
Randi Schuster,
Events,
Christopher Marinello Art Recovery International L,
Cahill Partners LLP,
Elizabeth von Habsburg Winston Art Group,
Monica Dugot,
Appraisers Association of America,
Marianne Rosenberg,
Terry Shtob,
Ford W. Bell,
Craig Hoover,
Bankruptcy and the Detroit Institute of Arts,
Lark Mason,
Kimmel Center,
Wildlife Trade and Conservation Branch,
Detroit Bankruptcy,
Diane Wierbicki,
Investment Property Exchange Services,
Samuel Sachs II,
Biscof & Paetow Rechtsanwälte,
Withers Bergman LLP,
Judith Bresler,
Paul Rosenberg
On February 26, 2014, Representative Jerrold Nadler (D-NY) introduced the “American Royalties Too Act”—House Resolution 4103. HR 4103 was referred to the House Subcommittee on Courts, Intellectual Property, and the Internet on March 20, 2014. There was also an “American Royalties Too Act” introduced in the U.S. Senate by Senator Tammy Baldwin (D-WI) on the same day.
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Topics:
Legislation,
Resale Royalties,
Wm. Lacy Clay (D-MO),
Maxine Waters (D-CA),
American Royalties Too Act,
Chuck Close,
Christopher Rauschenberg,
droite de suite,
Commerce Clause,
Julia Halperin,
Jerrold Nadler (D-NY),
The Art Newspaper,
U.S. Senate,
Judy Chu (D-CA),
HR4103,
Louise McIntosh Slaughter (D-NY),
Christie's,
Ed Pastor(D-AZ),
Huffington Post,
Intellectual Property and the Internet,
Eliot L. Engel([D-NY),
Robert Rauschenberg,
Mark Pocan (D-WI),
Theodore E. Deutch (D-FL),
James Moran (D-VA),
Senator Tammy Baldwin (D-WI),
Copyright,
Sotheby's,
John Lewis (D-GA),
and Sheila Jackson Lee (D-TX),
Janice Schakowsky (D-IL),
House Subcommittee on Courts,
Donna M. Christensen,
eBay,
Sam Farr (D-CA)
Although there are no definitive signs yet of likely change, the question of secondary royalties for visual artists remains far from resolved. The most comprehensive effort to date, the California Resale Royalties Act was declared unconstitutional in 2012 by the U.S. District Court for the Central District of California, in lawsuit brought by Chuck Close and others against Christie’s, eBay, and Sotheby’s. That decision is on appeal in the Ninth Circuit.
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Topics:
Equity for Visual Artists Act of 2011,
Resale Royalties,
American Royalties Too Act,
Chuck Close,
Resale Royalty,
Jerrold Nadler,
Christie's,
Tammy Baldwin,
California Resale Royalties Act,
Copyright,
United States Copyright Office,
Sotheby's,
eBay
