California Resale Royalty Act

The Berne Convention for the Protection of Literary and Artistic Works of 1886 included a droite de suite provision in Article 14ter[7] in its 1948 revision. This article provided for a general recognition of a resale right among signatory countries, but included the stipulation that protection provided by such recognition "may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed."[7]

Currently, California is the only state that recognizes the resale right. The Copyright Office conducted a study,[8] published in 1992, evaluating the nature of the resale right and the possibility of adopting a federal droite de suite. The Copyright Office concluded in the report that there were not adequate economic or copyright policy justifications to warrant adopting droite de suite at the federal level. The report did indicate that should the EU harmonize its droit de suite laws and extend the resale right to all member states, Congress may at that point revisit the resale right issue.[9]

Legislation was proposed in both the Senate (S.2000)[10] and the House (H.R. 3688)[11] in December 2011 that would provide for a national resale royalty right. The Equity for Visual Artists Act of 2011 (EVAA) would provide for a 7% royalty to be collected from sales of certain works of art where the sale price exceeded $10,000. Half of this payment would go to the artist or successor in copyright, and half would go towards an escrow account to support U.S. non-profit museums.[6] Both pieces of legislation are currently in committee. In conjunction with the consideration of the legislation, in September 2012 Congress published a Notice of Inquiry[12] requesting comments from the public on factual and policy matters relating to a possible federal resale royalty right.

The Resale Royalty Act came under legal scrutiny when, in October 2011, a group of artists and their heirs filed class action suits against auction houses Christie's and Sotheby's, and auction site eBay, for failure of those brokers to pay royalties per the Resale Act.[13] In a decision[14] on May 17, 2012, in the United States District Court for the Central District of California, Judge Jacqueline H. Nguyen dismissed the suits on the grounds that the Resale Royalty Act violated the Commerce Clause of the United States Constitution, and was therefore invalid as law (Estate of Graham, et al, v. Sotheby's Inc.).[15]

The Commerce Clause has been interpreted by the Supreme Court as not only affirmatively granting to Congress the power to regulate commerce among the states, but also, by negative implication, prohibiting the states from unjustifiably discriminating against or burdening the flow of interstate commerce.[15] A state regulation violates the Commerce clause where it "directly controls commerce occurring wholly outside the boundaries of a State."[15]

Judge Nguyen found that where the act regulates any transaction in which the seller resides in California, regardless of the location of the sale, buyer, or artist, the Resale Royalty Act "explicitly regulates applicable sales of fine art occurring wholly outside California."[15] The Court cited the example of a California resident placing a painting by a New York artist for sale with Sotheby's in New York, where at the subsequent auction the painting is bought by a New York resident.[15] In this instance, the California law requires the New York company to withhold the amount of the royalty from the sale price, and either locate and pay the artist in New York or remit payment to the California Arts Council should the artist not be located. Further, the Act permits the New York artist to sue the New York Sotheby's under California law should the auction house fail to collect and remit the applicable royalty to the artist.[15]

In 2015, an eleven-judge en banc panel of the Court of Appeals for the Ninth Circuit affirmed, holding that applying the Act to out-of-state sales made by a California resident was unconstitutional.[16][17] The court struck the clause "the seller resides in California or" from the Act, declining to rule on whether the Act could otherwise be applied to sales made within California.[16][17] In 2016, the U.S. Supreme Court declined certiorari, leaving the Ninth Circuit decision in place.[18][19]

In April 2016, another federal judge, Michael W. Fitzgerald, held the entire act to be preempted by section 301 of the Copyright Act of 1976.[20][21] That ruling was appealed to the Ninth Circuit, with initial briefs filed on March 9, 2017.[22] Oral argument was held on April 10, 2018.[23]