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
In a decision long awaited by artists and auction houses in particular, the Ninth Circuit Court of Appeals has ruled that the California Resale Royalty Act of 1976 (CRA)—America’s only droit de suite—is unconstitutional top regulate any sales of art outside of California. The court concluded, however, that that portion of the law is severable from the rest, and let the regulation of in-California sales stand for further interpretation by a subsidiary panel of the appeals court. There are two likely aftereffects of this decision. Galleries and auction houses can put any concerns to rest about sales in New York in particular, but one has to wonder about the effect it will have on putting items for sale in California, which will effectively have a premium not present in other states. It also raises the possibility that the resulting piecemeal framework will motivate movement on the pending federal bill (the American Royalties Too (ART) Act of 2015) concerning resale royalties. Could this be the development that prompts movement in Congress?
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Topics:
Legislation,
Resale Royalties,
Chuck Close,
Supreme Court,
Christie's,
Cal. Civ. Code § 986(a),
Dormant Commerce Clause,
droit de suite,
sales tax,
Cal. Redev. Ass’n v. Matosantos,
use tax,
American Royalties Too (ART) Act of 2015,
California Resale Royalty Act,
Copyright,
Ninth Circuit Court of Appeals,
Sotheby's,
eBay
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
A quirk of parliamentary procedure is that any bill in Congress exists only for so long as that particular Congress is in session. This week, the 114th Congress took its seats, meaning that any bill not passed by both the House of Representatives and the Senate, and signed by the President, is a dead letter. This is the fate of many, many bills—indeed most. 
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Topics:
Legislation,
Resale Royalties,
Chuck Close,
Moral Rights,
Nazi-looted art,
Foreign Sovereign Immunities Act,
28 U.S. § 1605,
Art Law Day,
114th Congress,
22 U.S.C. § 2459,
City of Amsterdam,
Rep. Jerrold Nadler (D-NY),
FSIA,
expropriation exception”,
droit de suite,
IFSA,
Foreign Sovereign Immunities,
Senate,
House of Representatives,
Immunity from Seizure Act,
President,
Foreign Cultural Exchange Jurisdictional Immunity
Several weeks ago, the parties to the appeal over the constitutionality of the California Resale Royalty Act (CRRA) briefed the question about whether the Ninth Circuit Court of Appeals should hear the case, rather than a three-judge panel that would otherwise be assigned to the case. The Ninth Circuit granted the petition yesterday, meaning the appeal will now go before the full court.
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Topics:
Legislation,
Foie Gras,
538 U.S. 644,
N. Randy Smith,
729 F.3d 937,
Auction Houses,
California Health & Safety Code § 25982,
Chuck Close,
730 F.3d 1070,
Moral Rights,
Commerce Clause,
Affordable Care Act,
Ass’n des Eleveurs de Canards et d’Oies du Quebec,
Judge Jacqueline H. Nguyen,
Jerrold Nadler,
Christie's,
Research & Mfrs. of Am. v. Walsh,
California Resale Royalties Act,
Ethanol,
Dormant Commerce Clause,
491 U.S. 324,
U.S. Constitution,
Copyright,
royalties,
Garcia,
Ninth Circuit,
Cal. Code Regs. tit. 17 §§ 95480–90,
Sotheby's,
Rocky Mountain Farmers Union v. Corey,
Healy v. Beer Inst.,
Ferdinand F. Fernandez,
eBay,
Google,
Mary H. Murguia
The defendants in the case on appeal over the constitutionality of California’s Resale Royalty Act have just briefed the court’s question about whether the full court should rehear the case. Responding to an order that the parties explain whether the case conflicts with recent Ninth Circuit precedent, Christie’s, Sotheby’s, and eBay all argued emphatically that no conflict justifies reinstating the law that a District Court struck down in 2012.
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Topics:
Legislation,
Foie Gras,
Resale Royalties,
538 U.S. 644,
N. Randy Smith,
729 F.3d 937,
Auction Houses,
California Health & Safety Code § 25982,
Chuck Close,
730 F.3d 1070,
Moral Rights,
Commerce Clause,
Affordable Care Act,
Innocence of Muslims,
Ass’n des Eleveurs de Canards et d’Oies du Quebec,
Judge Jacqueline H. Nguyen,
Christie's,
Research & Mfrs. of Am. v. Walsh,
California Resale Royalties Act,
Ethanol,
Dormant Commerce Clause,
491 U.S. 324,
U.S. Constitution,
Copyright,
royalties,
Garcia,
Ninth Circuit,
Cal. Code Regs. tit. 17 §§ 95480–90,
Sotheby's,
Rocky Mountain Farmers Union v. Corey,
Healy v. Beer Inst.,
Ferdinand F. Fernandez,
eBay,
Google,
Low Carbon Fuel Standard,
Mary H. Murguia
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
Consistent with expectations after reports from the court hearing in March, the U.S. District Court in Los Angeles dismissed the case brought by artist Chuck Close and others that alleged violations of the California Resale Royalty Act (the “CRRA”) by Sotheby’s, Christie’s and eBay, and ruled that the CRRA is unconstitutional in its entirety. Similar claims against eBay were also dismissed in a shorter opinion referencing the Sotheby’s and Christie’s decision.
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Topics:
Legislation,
Resale Royalties,
Chuck Close,
Commerce Clause,
Christie's,
Dormant Commerce Clause,
Collections,
California Resale Royalty Act,
Copyright,
Sotheby's,
eBay
Donn Zaretsky at the Art Law Blog (whose prior commentary on the case gives excellent analysis of the Commerce Clause and other issues) reports that the U.S. District Court issued a tentative ruling at a hearing on Monday to dismiss the California Resale Royalty Act cases against Sotheby's, Christie's and eBay (Chuck Close is one of the plaintiffs). No written order has come down, but we will report and analyze when it does. This is big news; for the moment the case docket indicates only that the hearing took place and that the judge took the matter under advisement.
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Topics:
Legislation,
Donn Zaretsky,
Resale Royalties,
Chuck Close,
Christie's,
Dormant Commerce Clause,
Collections,
Sotheby's,
eBay
