Quinn P. Stine
, ,

Resale Royalty Right: Redux

/

Quinn P. Stine

A comment on droit de suite and why the right belongs to the States

I. Introduction

The resale royalty right, otherwise known as droit de suite, has been making the news in recent years. The 1976 California Resale Royalty Act was declared unconstitutional by a 9th Circuit District Court, Puerto Rico repealed its resale royalty right statute, the Equity in Visual Arts Act was introduced and subsequently failed, and the United States Copyright Office finished its Notice and Inquiry on the subject and is moving forward with roundtable discussions. These events have lead to a discussion and scholarship redux in the art and academic worlds.

The current redux is only the most recent in a long history that first began in the mid 19th century. The sheer volume of academic scholarship produced since then is staggering and repetitive. Proponents’ arguments overwhelming use emotional appeals based on idealized and romanticized notions of the artist and the law. Notions that do not reflect an accurate understanding of who the artist is or United States copyright law. Proponents rely on emotional appeals because logical legal arguments for the resale royalty right do not exist. Their only recourse is to draw attention to the “starving artist” and pathosticate over her plight in an attempt to gain support. This adherence to their own emotional appeals blinds them to their arguments logical inconsistencies and the right’s inherent problems.

The recent discussion and scholarship concerning resale royalty right has been followed by an attempt to enact legislation in the United States on the federal level. The pages contained herein will argue that the right should not be enacted. To accomplish this, the comment will examine the theoretical basis of copyright law, discuss the United States’ obligations to its treaties and multilateral agreements, summarize resale royalty right statutes that exist on the State level, analyze how the right conflicts with established principles, paint a more accurate portrait of an artist, and illustrate how the right duplicates exclusive rights already granted by copyright law.

II. The Statutory-Grant Theory of Copyright Law

To adequately understand why the resale royalty right duplicates the exclusive rights already granted by copyright law a discussion of copyright law’s foundation and competing theories is necessary. Legislation enacted by Congress under the Constitution must comport with the policies set forth by the Constitution. Copyright law is legislation enacted by Congress under the Constitution. Therefore, copyright law must comport with the policies set forth by the Constitution. In any discussion of copyright law we must be cognizant of those policies lest we fail to see the forest for the trees. Article I, Section 8, Clause 8 (“copyright clause”), of the Constitution grants Congress the power to enact copyright legislation.1 At the same time it also limits the extent for which that power may be used by setting forth three policies that any legislation enacted by Congress must comport with in order to be constitutional.2

To ensure the general welfare of the public copyright legislation must be designed to (1) promote progress in learning and the advancement of knowledge, (2) preserve the public domain by only granting to authors an exclusive right in their writings for limited times, and (3) protect the author’s exclusive right subject to the public’s reasonable use of an author’s writings.3 These policies are evidenced in the clause itself, which provides:

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries.4

The copyright clause embodies both copyright and patent law and must be separated for a clear reading of the copyright clause. The clause read separately empowers Congress to enact copyright legislation to promote the progress of science, by securing for limited times the exclusive right to authors in their writings.5 At the time the Constitution was ratified, the term “science” meant “knowledge or learning.”6 Relevant to any discussion of copyright law are all three constitutional policies.

The first and most fundamental constitutional policy set forth by the copyright clause is the promotion of progress in learning and the advancement of knowledge.7 The copyright clause instructs Congress to do this by “promot[ing] . . . Progress.”8 The definition of “progress” is a subject of debate, but has coalesced around certain general interpretations.9 This comment accepts a definition that interprets “progress” as “encompassing not only an increase in the quantity or quality of new works, but also . . . in the dissemination and preservation of works already in existence.”10

Learning is a process that results in the acquisition of knowledge. Knowledge is the accumulation of information and information held by the mind translates to ideas. To promote progress in the learning and advancement of knowledge copyright protection does not encompass ideas. The ideas contained in expression are free to spread, change, and evolve allowing society’s culture to flourish.11 This means that some parts of an author’s writing are uncopyrightable because they are only ideas. As Judge Learned Hand described in Nichols v. Universal Pictures Corp.,12

Upon any work . . . a great number of patterns of increasing generality will fit equally well. As more and more of the incident is left out. The last may perhaps be more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.13

Copyright only protects the author’s expression found in the four corners of his writings and not the ideas on which his writings are based – this is the idea/expression dichotomy.14 The distinction between ideas and their expression ensures that the public will be able to learn from the ideas and create new writings based on them, advancing knowledge in the process. The idea/expression dichotomy also allows a distinction to be made between the public’s use of an author’s writing containing her expression, and the public’s use of an author’s copyright in that writing.15 The personal use of a writing containing expression is always a reasonable use and is the most basic way learning occurs and knowledge is advanced.

The mechanisms for effectuating the copyright clause’s fundamental policy are contained within the other two policies. The second policy embodied in the copyright clause is the preservation of the public domain. This is done by only granting to authors an exclusive right to the copyright embodied in their writings for limited times.16 The public domain is a collection of writings whose expression is no longer protected by copyright. These may be freely used by authors to create new writings which may then qualify for copyright protection. Once the limited time has passed those expressions become part of the public domain and cannot be recaptured by copyright protection as they then exist.17

Preservation of the public domain is imperative since all of an author’s expressions in essence come from the public domain. The copyright clause grants Congress the power to give a “limited proprietary control of writings composed of ideas and words – materials taken form the public domain.”18 Preserving the public domain by restricting the grant of exclusive rights to a period of “limited times” fulfills the fundamental policy of the copyright clause. The public domain “promot[es] . . . Progress”19 by assisting in the “dissemination and preservation of works already in existence.”20

The third policy embodied in the copyright clause is protecting the author’s exclusive right subject to the public’s reasonable use of the author’s writing and copyright in those writings. The public’s reasonable use in the context of copyright law is personal use and the doctrine of fair use.21 The exclusive rights granted to authors exist statutory. These exclusive rights are statutorily limited. Therefore, the exclusive rights granted to authors exist as limited statutory-grant. Copyright is a bundle of exclusive rights that have been statutorily expanded since the 18th century and now include the right of reproduction, the right to prepare derivative works, the right to publicly distribute and display, and the right to publicly perform.22 The definition of “writings” has also been statutorily expanded to include all types of tangible medium that engender “original works of authorship.”23 Copyright protection subsists in a writing when three requirements are met; (1) originality,24 (2) minimal creativity,25 and (3) fixation.26

Because the statutorily granted exclusive rights are limited they are often referred to as a limited monopoly.27 Since the statute only authorizes the grant of a limited monopoly in the form of a series of rights it follows that those rights granted are not natural, but regulatory.28 The 1976 Copyright Act (“Copyright Act”) chose the statutory-grant theory of copyright and in doing so rejected a theory of copyright based on natural law.29 The statutory-grant theory allows the legal distinction to be made between the use of an author’s writing and the use of and author’s copyright in that writing.30 Furthermore, the statutory-grant theory explains why the exclusive rights are limited. If the copyright was an absolute right of the author (as many proponents of the natural rights theory insist) it could not be limited.

The difference between the use of an author’s writing containing her expression and the use of an author’s copyright in that expression is the difference between personal use and fair use.31 The personal use of an author’s writing containing her expression is logically always allowed.32 Without this crucial ability of the public to make personal use of any particular writing the fundamental policy of copyright goes unfulfilled. Fair use is the public’s ability to infringe the copyrighted expression contained in an author’s writing. Without an exception for fair use, copyright protection would inhibit rather than promote the progress of learning and the advancement of knowledge by making copyright an absolute rather than a limited monopoly.33

Personal use is mainly non-commercial, while fair use may potentially be commercial.34 The role of fair use in copyright law is to ensure that the law does not unduly burden the dissemination of knowledge or burden the public’s First Amendment rights.35 If copyright protection were a natural right instead of a set of regulatory rights copyright law would conflict with the First Amendment right to free speech, giving the owners of copyright an absolute monopoly over the writing and the expression contained in that writing.36

Copyright protection is a burden on free speech rights because the limited monopoly given to authors governs how the public may use the author’s expression of his ideas. Copyright thereby limits how others may express themselves. However, as copyright protection burdens the public’s First Amendment rights, fair use lessens the burden.37 Fair use acts as a pressure release valve to minimize the effect the grant of a limited monopoly in expression has on the First Amendment. Fair use has become particularly important in the digital age as the exclusive rights given to authors have become more expansive.38 Fair use began as a judicially created doctrine, but is now codified in 17 U.S.C § 107 and plays a major constitutional role in ensuring copyright law adheres to the constitutional policies set forth by the copyright clause.39

The exclusive rights given to authors act as a proprietary incentive, encouraging the creation and distribution of writings.40 Protection of the author’s proprietary incentive is part of the mechanism ultimately designed to benefit the public. However, the copyright protection does not guarantee profit. Only the market and the marketing method will determine the success and profitability of an author’s writing and its correlated copyright, not the presence of the copyright.41 The fundamental policy of the copyright clause – the promotion of progress in learning and the advancement of knowledge – is fulfilled when the proprietary incentive of the author is protected, subject to personal and fair use, and the public domain is preserved by limiting the duration of copyright.

A. Statutory-Grant Theory vs. Natural Rights Theory

Throughout the modern history of copyright law there have been two competing theories on which to base its foundation, statutory-grant theory and natural rights theory. The controversies and differing viewpoints that arise in the law often stem from the foundation one chooses to base an opinion. Generally, copyright law based on natural rights theory had its beginnings in civil law countries, while copyright law based on the statutory-grant theory had its beginnings in common law countries.

These two foundations for the law have been competing for attention in the United States since before its formation. However, a discussion of their battle for attention is beyond the scope of this comment. Necessary to the discussion is the fact that the statutory-grant theory won. This is evidenced by the Copyright Act which preempted most, if not all, common law copyright (and with it case law based on a natural law theory) and statutorily granted to an author a bundle of exclusive rights in the form of a limited monopoly. These rights are wholly legal in nature and can be separated from the tangible medium in which the copyrighted expression subsists. An author can transfer her statutorily granted rights individually, to various parties with competing interests, or to one party as a bundle.

Wheaton v. Peters, was the first major Supreme Court decision to analyze which theory Congress chose to base the law.42 Justice John McLean writing for the majority wrote “[t]hat a man is entitled to the fruits of his own labours must be admitted; but he can enjoy them only, except by statutory provision, under the rules of property which regulate society, and which define the rights of things in general.”43 Justice McLean and the majority of the Court recognized the congressional choice to base copyright protection on a statutory-grant.

Yet the natural law argument persists due, in part, because of its emotional appeal.44 This emotional appeal has made its way into the opinions of well respected and famous Justices such as Oliver Wendell Holmes who wrote “[p]ersonality always contains something unique. It expresses its singularity even in hand writing, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the limits of the act.”45 It is important to remember that while copyright law can be seen as having a legitimate basis in natural law (a point that this author will not quibble with) the United States has made a choice that copyright law in this country will be based on the statutory-grant theory. This is supported by the Copyright Act, voluminous case law, and our statutory distinction between copyright and moral rights. Proponents of the natural law theory “have long tended to view copyright not in terms of what it has been or legally is, but rather in terms of what they would like it to be.”46

B. Moral Rights

Moral rights are a derivative of natural rights theory. They are personal to the author and subsist in the writing that contains an author’s expression. Moral rights acknowledge the author’s exclusive right to attribution in and protection of the integrity of his writing and his reputation in connection with that writing.47 Millar v. Taylor, which was decided in 1769, provides a description of moral rights that may still ring true today.48

[Without moral rights t]he author may not only be deprived of any profit, but lose the expense he has been at. He is no more master of the use of his own name. He has no control over the correctness of his own work. He can not prevent additions. He can not retract errors. He can not amend; or cancel a faulty edition. Any one may print, pirate, and perpetuate the imperfections, to the disgrace and against the will of the author; may propagate sentiments under his name, which he disapproves, repents and is ashamed of. He can exercise no discretion as the manner in which, or the persons by whom his work shall publish.49

French jurisprudence is generally credited with defining moral rights as rights.50 French jurists claim that an author has a permanent relationship with his writings and from this permanent relationship spring four perpetual and inalienable rights.51 Those rights are (1) the right of paternity, (2) the right in integrity, (3) the right to release, and (4) the right to withdraw or modify.52

These rights were recognized in Millar v. Taylor.53 The right of paternity grants an author the ability to have his name attributed to the writing. He is the “master of the use of his own name.”54 The right of integrity grants an author “control over the correctness,” of this work and the ability to “prevent additions.”55 The right to release grants the author the ability to “exercise . . . discretion as the manner in which, or the persons by whom his work shall publish.”56 Finally, the right to withdraw or modify grants the author the right to “retract errors” and “amend; or cancel a faulty edition.”57 Moral rights are not universally supported. Some authors, for whom moral rights are intended to benefit, disagree with the utility of them. Especially when the writings to which they apply are narrowly defined, stifle creativity, and artificially preserve outmoded practices and subjective intent.58

C. The Resale Royalty Right also known as Droit de Suite

Moral rights espouse the existence of an inalienable, perpetual, and personal relationship between an author and the writing that contains her expression. This concept holds great emotional appeal and invokes a sense of individuality. The individuality an author gains through the act of baring one’s soul. A corollary to individuality is a sense of injustice when it appears that virtue has been disrespected and casually tossed aside. It is from these emotional responses that the resale royalty right evolved. The resale royalty right is a curious thing. It claims elements of both moral and proprietary rights. Droit de suite literally translated means “follow-up right.”59 It allows an author to receive a royalty (often a percentage of the sales price) from subsequent resales of her original writing.60

The first resale royalty right statute was enacted in France in 1921 after a concerted propaganda campaign to expose the plight of the “starving artist” and her family.61 The campaign for the right highlighted the vast disparities in the original purchase price and eventual resale price of an author’s writing.62 One example from the time is the often cited case of a painting by Edgar Degas, originally purchased from the artist for 500 francs and resold for 436,000 francs.63 Newspapers of the time widely published a drawing depicting an auctioneer closing the auction with is hammer and saying “100,000 francs gone!” The drawing juxtaposes the auctioneer with two destitute children sitting in the front row of the auction exclaiming “look, one of Papa’s paintings!”64 These accounts engaged the public’s sense of injustice and perceived unfairness. Needless to say public opinion swayed in favor of the right’s enactment.

The resale royalty right was largely ignored in the United States until 1973 when the vast disparity in the original purchase price and eventual resale price of an author’s writing made headlines across the nation.65 Robert Scull auctioned off an assemblage by Robert Rauschenberg entitled Thaw.66 Thaw was sold by Rauschenberg in 1958 for 900 dollars and resold in 1973 for 85,000 dollars.67 Rauschenberg was not happy.68 He was reported as saying “I’ve been working my ass off for you to make all the profit!”69 He then vowed to include a resale royalty right in all of his subsequent sale contracts.70 After this event resale royalty right bills were introduced in various States and in Congress.71 However, all attempts to pass legislation failed except in California, Puerto Rico, South Dakota, and Georgia.72

III. International Agreements & United States Moral Rights

A discussion of the United States treaty and multilateral agreement obligations is necessary to ascertain whether the enactment of a resale royalty right is necessary to fulfill those obligations. The phrase “international copyright law” is a misnomer.73 Currently, there is no one body of law to point to that can be said to govern copyright internationally. Copyright law exists as a set of national standards connected together by the principle of national treatment.74 Relevant here are the Berne Convention for the Protection of Literary and Artistic Works75 (“Berne Convention”) and the Agreement on Trade-Related Aspects of Intellectual Property Rights76 (“TRIPS”).

The Berne Convention’s basic principle is national treatment. National treatment is a principle of non-discrimination. Member countries must accord to the nationals of other countries treatment no less favorable than they accord to their own citizens with regard to the copyright protections afforded to them.77 Important to note is that the Berne Convention sets a minimum substantive standard for member countries to follow. Members are given the discretion to give more protection as long as they also accord national treatment to foreign authors.78 Relevant to a discussion of the resale royalty right are articles 6 bis and 14 ter of the Berne Convention.79

Article 6 bis implementation is mandatory for members and grants to authors the moral rights of attribution and integrity.80 Article 6 bis also specifies that these moral rights are independent of an author’s proprietary rights and are retained “even after the transfer” 81 of those rights. The inference is that the moral rights granted in article 6 bis are inalienable. The article also stipulates that the moral rights granted “shall be maintained” at least until the expiration of the proprietary rights,” but that countries who did not protect moral rights after the death of the author when they acceded to the Berne Convention may then continue to leave the rights unprotected after the author’s death.82 Paragraph 3 dictates that enforcement of these rights is to be governed by the national law “of the country where protection is claimed.”83

Article 14 ter speaks directly to the resale royalty right.84 This article grants the author an inalienable right to “an interest in any sale of the work subsequent to the first transfer by the author.”85 It further provides that the works covered include “original works of art and original manuscripts of writers and composers.”86 Furthermore, protection of this right is not mandatory. It is one of four exceptions to the principle of national treatment.87 The right may only be claimed “if the legislation in the country to which the author belongs permits” and then only to the extent allowed in the country where the claim is made.88

This means that a country that recognizes the resale royalty right is only allowed to apply it to works whose authors are nationals of another country which also recognizes the right.89 Article 14 ter also instructs the adopting country to determine the collection procedure and amount to be collected.90 This article operates more as a suggestion to member countries than anything else. Additionally, article 16 of the Berne Convention contains enforcement provisions, but they can be described as aspirational at best. It directs that enforcement “shall take place in accordance with the legislation of each country.”91

The TRIPS agreement incorporates the Berne Convention’s minimum substantive standard and national treatment by reference.92 This extends the reach of the Berne Convention to all the member nations of the World Trade Organization (“WTO”). The TRIPS enforcement provisions are also enforceable by the WTO through a dispute settlement mechanism, trade sanctions, civil proceedings, boarder measures, and criminal sanctions.93 However, none of these enforcement proceedings apply to moral rights. The TRIPS agreement mandates that “[m]embers shall comply with Articles 1 through 21 of the Berne Convention,” but specifically exempts article 6 bis and “the rights derived therefrom.”94 This means that moral rights as contained in the Berne Convention have no significant means of enforcement and are left to the member nations to either legislate and enforce or not.

A. Federal Moral Rights

The United States has been criticized for not fully implementing and enforcing the moral rights contained in the Berne Convention’s article 6 bis.95 The United States did not become a member of the Berne Convention until 1988 and did so through the Berne Implementation Act.96 This act did not recognize the moral rights required by article 6 bis, but instead removed the copyright formalities of registration and notice and essentially declared that the Copyright Act (in combination with various trademark, tort, and contract law) already accommodated the moral rights required by the Berne Convention.97

Congress was aware of the existence of moral rights. Its decision to ultimately not include them in the Copyright Act can possibly be traced to reports it received from the Copyright Office on the matter. One study by the Copyright Office concluded:

Judge Frank concluded in the case of Granz v. Harris [198 F.2d 585 (2d Cir. 1952), concurring opinion] that there are adequate grounds in the common law for enjoining distribution of a distorted version, and hence there was no need to resort to the doctrine of moral right as such. We believe that this is generally true for all aspects of the personal rights of authors, and that common law principles, if correctly applied, afford an adequate basis for protection of such rights. In our view, the contention that the author’s rights of personality are not sufficiently protected in the United States, and the belief that there is an irreconcilable breach between European and American concepts of protection of authors’ personal rights, seem to be dispelled by close scrutiny of the court decisions here and abroad.98

Although the Copyright Act did not explicitly delineate moral rights it was not devoid of them. The Copyright Act contains four rights that may be considered moral-type-rights.99 Those include the right to own the copyright100 (which vests initially in the author), the derivative work right101 (the author may prevent another author from basing a new work on his own), limiting the ability to distort sound recordings under the compulsory licensing regime,102 and the right to regain ownership of a copyright the author has assigned to another (the termination right103 which may be initiated 35 years after the assignment and is inalienable).

Moral rights in the United States officially and explicitly gained a statutory foothold with the Visual Artist’s Rights Act of 1990 (“VARA”).104 VARA grants to authors of “works of visual arts” the right of attribution and integrity.105 VARA did not grant these rights in a broad fashion. They are limited in several key ways. First, the definition of “works of visual art” is narrowly defined as:

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.106

Second, the right of integrity is limited by exceptions which carve out circumstances not considered to be a “distortion, mutilation, or other modification.”107 The exceptions include modifications that occur as a “result of conservation, or of the public presentation, including lighting and placement.”108 Furthermore, the rights of attribution and integrity do not apply to “any reproduction, depiction, portrayal, or other use of a work.”109 Finally, the rights are inalienable, waivable,110 and endure for the life of the author.111

There is an argument that VARA does not fully implement article 6 bis of the Berne Convention. The right of attribution and integrity do not endure beyond the life of the author, the author can waive her rights, and there are certain carved out exceptions that limit the context in which the rights may be claimed. These criticisms can largely be ignored when consideration is given to fact that article 6 bis leaves to the member countries the task of implementing these rights under their national laws. Another component is the fact that the Berne Convention lacks an effective method of enforcement, specifically leaving it to the member nations. The TRIPS agreement also specifically exempts from adherence article 6 bis, thus removing it from its enforcement provisions and leaving moral rights world wide optional. Although the language in VARA does not mirror the language in article 6 bis it does mirror its spirit, as well as, reflect the Copyright Act’s adoption of the statutory-grant theory. VARA mirrors 6 bis’s spirit by recognizing and explicitly defining the required moral rights.

The resale royalty right was part of discussion leading up to the enactment of VARA, but was ultimately left out.112 Congress instead tasked the Copyright Office with commissioning a report on the economic and policy impact of implementing a resale royalty right.113 That report concluded that the right should not be implemented on the federal level until more data on its economic impact and effect on the creation of new works could be more concretely ascertained.114 Currently, the economic impact and effect on furthering the creation of new works has still not been confirmed.115

IV. The Resale Royalty Right on the State level

A discussion of current State laws is necessary to illustrate the prevailing attitude towards the resale royalty right in the United States. That attitude evidences a preference for the right to be handled between contracting parties. To date this comment can only identify four locations where statutes involving the resale royalty right have been enacted: Puerto Rico,116 California,117 South Dakota,118 and Georgia.119 The Georgia and South Dakota statutes are the only two statutes that have not recently had their existence called into question. The Puerto Rican statute was repealed in March 2012120 and the California statute, is in effect for now,121 but was declared unconstitutional by a 9th Circuit District Court in May 2012.122

The Georgia and South Dakota statutes in essence only acknowledge the existence of a resale royalty right and the artist’s ability to negotiate for it when contracting with the State. Both statutes only apply the right to “works of art” in “state buildings.”123 The definitions of “state buildings”124 are broadly defined. The definitions of “works of art” are specifically layout and are very inclusive of the types of works covered.125 The resale royalty right provisions allow the author to contract to receive a “specified percentage of the proceeds” from a subsequent sale to a third party.126 The statutes do not specify the percentage and presumably leaves the “specified percentage” to be negotiated for during contracting.

Moreover, the right is only implicated when the “work of art” is resold as an individual piece.127 If the whole building is sold to a third party, works of art included, the right is not implicated.128 Additionally, the contract may extend the right to the author’s “heirs, assigns, or personal representatives until after the end of the twentieth year following the death of such artist.”129 The statutes do not provide for a mechanism by which once the “work of art” is sold payment is remitted to the author or her heirs, assigns, or personal representatives.

The States are under no obligation to notify the author that “work of art” has even been resold. The import from these statutes is that they acknowledge a self-executing contracted right and places the burden on the author to monitor the market for sales to third parties. Furthermore, the Georgia statute is the stronger of two statutes. The author must be informed of her ability to negotiate for the resale royalty right’s inclusion in the contract before its execution.130

Puerto Rico’s resale royalty right statute was much broader before it was repealed and replaced. Like Georgia’s and South Dakota’s statutes Puerto Rico’s statute applied to “works of art,” however, Puerto Rico’s statute applied to all “seller[s].”131 This means that the statute regulated public and private sales. The statute applied to “any person who creates a work of art” and entitled them to “five (5) percent of the increase in the value of said work at the moment it is resold.”132 The statute also made the seller and “agent or proxy” jointly responsible for remitting the payment to the person.133 Again, however, it was the author’s duty to monitor the market for sales to third parties.

The statute also provided for the remittance to be deposited in “special accounts” created with the Copyright Registrar in Puerto Rico when the person’s name was known, but they could not be located.134 Finally, the right endured for 50 years after the death of the author.135 It is significant that this statute required (1) the work of art was sold for more than what was paid for it, and (2) the person who created the work of art was only entitled to receive 5 percent of the increase in value between the subsequent sale prices. This law was repealed and replaced with Act 55.

Act 55 is the legislature’s response to the case Cotto Morales v. Rios,136 which many thought extended Puerto Rico’s moral rights to broadly. Act 55’s purpose was to bring Puerto Rico’s moral rights laws back into alignment with federal copyright law. Resale royalties are only mentioned once in reference to the author’s ability to “decide how you will . . . receive resale royalties.”137 Act 55 allows for the inference, like the Georgia and South Dakota statutes do, that the author has the right to contract for the resale royalty right.

The 1976 California Resale Royalty Act (“CRRA”)138 is the oldest and broadest statute, but is currently involved in Estate of Graham v. Sotheby’s Inc.139 The case is currently on appeal in the 9th Circuit where the CRRA’s constitutionality will be decided. The statute applies to “fine art” and “artists.” “‘Fine art’ means ‘an original painting, sculpture, or drawing, or an original work of art in glass’140 and ‘artists’ means the ‘person who creates a work of fine art and who, at the time of resale, is a citizen of the United States, or a resident of the state who has resided in the state for a minimum of two years.’”141

The express words of the statute regulate public and private sales when “the seller resides in California or the sale takes place in California”142 and the artist is a citizen of the United States.143 The statute entitles an artist to 5 percent of sale price and is unwaivable.144 However, an artist may contract for a resale royalty amount in excess of 5 percent.”145 The seller or her agent has the initial burden of locating and remitting 5 percent of the sales price to the artist.146 If the seller cannot locate the artist within 90 days the remittance must be paid to the California Arts Council whose burden it becomes to locate the artist within 7 years.147 If after 7 years the artist can still not be located the remittance is transferred to the Art Council for the purpose of acquiring fine art.148

Furthermore, the artist’s cause of action for damages must be brought within three years after the date of sale or one year after the discovery of the sale, whichever is longer.149 The resale royalty right endures for 20 years after the artist’s death if the artist died after January 1, 1983.150 Additionally, the right embodied in this statute only applies when the resale price is 1,000 dollars or more.151 Finally, the statute does not apply “[t]o the resale of a work of fine art by an art dealer to a purchaser within 10 years of the initial sale of the work of fine art by the artist to an art dealer, provided all intervening resales are between art dealers.”152 An “‘[a]rt dealer’ means ‘a person who is actively and principally engaged in or conducting the business of selling works of fine art for which business such person validly holds a sales tax permit.’”153

The CRRA has been challenged on constitutional grounds twice since its enactment. The CRRA survived Morseburg v. Balyon,154 but may not survive Estate of Graham v. Sotheby’s Inc. (the District Court held that the CRRA violated the dormant Commerce clause).155 The above State statutes (and the absence of others) illustrate the United States overwhelming preference for a contractual approach to the resale royalty right. The contractual approach may be the best since, as the Puerto Rican statute states, it will allow the artist to “decide how [she] will . . . receive resale royalties.”156

V. A Federal Resale Royalty Right should not be enacted

The United States should not enact resale royalty right legislation on the federal level. First, the main argument for a federally enacted right is an emotional appeal. The resale royalty right is founded on perceived unfairness and injustice that results from the monetary value realized by some works of art upon subsequent resales. Proponents advance an argument based on an emotional appeal because there is no logical legal argument that sufficiently supports allegations of actual unfairness or injustice in copyright law.

Proponents of the right cry out on behalf of the “starving artist.” However, the notion of the “starving artist” living and dying in destitute, while baring her sole to the world does not exist in reality. It is product of 19th century romanticism. Reality, of course, paints a greyer portrait of who an artist is in the United States. Today’s artist starve, not because of unfairness or injustice in the law or failure to participate in the subsequent resales of their work, but because they suffer from encumbrances faced by other professionals – lack of market exposure, student loan debt, lack of opportunities, oversupply, and an ignorance to the Copyright Act’s statutory-grant.

A 1986 study, based on United States Census data, found that there was “no basis for concluding that artists earn any less on average than they would in other jobs.”157 And that “the field of creative and performing arts is a far cry from ‘an economic disaster area.’”158 In 1986 artists were essentially just like the rest of society, susceptible to the same gains and pitfalls as other professionals. In 2013 this reality has not changed. Professionals who are able to secure positions do not find themselves wading through an economic disaster area. While those who do not secure positions struggle to practice their profession. An artist who is unable to sell her artwork will not survive as an artist, regardless of presence of a resale royalty right. Proponents’ focus on the romantic notion of an artist and their works subsequent resales fails to address the real issues that create a “starving artist.” The inability to illuminate the real issues only serves to further undermine the emotional justification for the right in the United States.

First, artists, like any professional, who expect to earn a living through the sale of their artwork, earn some sort of graduate degree, often a Master of Fine Arts (“MFA”).159 And like any professional degree the cost of attendance may be as high as 200,000 dollars.160 Many artists take on student loan debt to pay for these degrees.161 Second, oversupply is a current issue many artists are facing162 and the rate at which MFAs are produced continues to grow.163 Furthermore, information concerning success rates is often not available to artists until after they are deeply invested in the MFA program and have incurred significant debt.164 Once the artist is embedded in program “[t]he opportunity costs feels too high to leave, and due to the ambiguity of how success comes about, artist are reluctant to shift careers because they may believe they are always on the verge of a breakthrough.”165

Third, oversupply of artists leads to stiff competition for the available opportunities and market exposure. MFAs compete for positions as art assistants, art handlers, gallery workers, delivery, and museum or non-profit space administrators.166 These jobs are generally low paying, but sought after because they provide contacts and access.167 The low paying nature of these jobs and the inevitability of student loan payments put artists in the position of working a job full time that barely sustains living expenses, while attempting to sell their artwork.168 Fourth, the one thing an MFA degree does not teach an artist is the skill necessary to properly exploit their artwork in the market place. Artists are left pondering a “systematic way of relating to the market” and asking the question, “how do I articulate a relation to selling my work?”169 Fifth and finally, all this leads to the real reason artists are “starving.” They do not know how to actively exploit the statutory grant of rights given to them by the Copyright Act.

The second reason the United States should not enact resale royalty legislation is because the legal justifications for the resale royalty right do not withstand logical scrutiny. The right claims elements of both moral and proprietary rights. In its purest form the right is inalienable, but seeks proprietary gain based on a personal connection to a writing that contains an expression. This is its greatest weakness. It does not properly fit into either category of rights and only serves to duplicate those rights already granted by the Copyright Act.

One proponent described the right’s legal justifications as follows, “[t]he primary [legal] justification for the droit de suite lies in the legal recognition of the personal link between the artist and his work, which acknowledges that art is not merely and economic asset, but is a continuing projection of the artist personality. Hence artists should be able to share in the subsequent exploitation of their works through the mechanism of a resale royalty . . . .”170 This proponent fails to understand the basic structure of copyright law in the United States. The statutory-granted proprietary rights are wholly separable from the moral rights attached to the artist’s personality. Moral rights in the United States do not entitle an author to proprietary gain. In fact the moral rights of attribution and integrity already cover what this proponent seeks to maintain – the “personal link between the artist and his work.”

The proponent attempts to provide further legal justification by advancing the argument that the proprietary rights granted to authors by the copyright laws disfavor fine artists. The proponent writes “[writers and composers] are able to share in the profits generated by the subsequent mass production, recording, transmission, and performance of their works, while [artists] create one-of-a-kind objects which cannot be copied, and hence cannot be exploited by their creator beyond their initial sale.”171 The proponent is flatly wrong and confuses “cannot be exploited”172 with “unwilling to exploit” or “lacks the know-how to exploit.”

The court in Morseburg v. Balyon recognized that “the failure to utilize copyright protection has its source in . . . ignorance, a distaste for legal details, weak bargaining power, and a desire to avoid defacing the work with a copyright symbol.”173 Nowhere on that list was inherent unfairness of copyright protection toward fine artists. Furthermore, writers174 and composers175 are only able to share in the profits generated by the subsequent mass production of their works because they have entered into contractual agreements that provide them those profits. The statutory-grant in the Copyright Act makes it possible for authors to enter into contractual arrangements, not guarantee profit on tangible mediums of expression beyond their first sale.

It is true artist generally “create one-of-a-kind objects,” however it does not follow that these objects “cannot be copied.”176 Digital technology is available at various levels of quality that can turn a one of a kind object into a format that is infinitely reproducible. Once the work is reproducible an artist may fully exploit the Copyright Act’s statutory-grant. Artist may use digital technology to supplement the income earned by the sale of their original works through licensing or production of prints and merchandise. Like the author of a book, the artist may then contract for royalties. Internet sites such as eBay177 and Etsy178 have promoted the creation of markets designed to exploit an artist’s copyright in this manner.179

Furthermore, copyright law is inherently fair because it treats all copyright, regardless of tangible medium, the same. Copyright law is medium neutral. It is the business models employed by artists that ultimately determine how successful the copyright in their work will be in the market. Different forms of creative work are more naturally suited for different business models and gravitate towards those models accordingly. None of the models are inherently more profitable or fair than others.180 All this illustrates how the legal justifications for the resale royalty right vaporize when even the faintest of light shines on their surface.

The right’s lack of logical legal justifications and the internal struggle with its own identity is glaring. In the recent Notice and Inquiry done by the United States Copyright Office the Artist Right Society (“ARS”) submitted a comment containing this testimonial.

I am one of those artists who have always thought it was unfair to profit from artists when the work went much higher than the collectors paid for it. On a personal note, I have nothing to leave my son but my work when I die. Much of it has been sold at bargain rates; most of it my best work. Thinking about it, oddly enough, I feel left out of my own story . . . why should only the present owner turn a profit, while the artist is left with nothing? In other businesses, e.g. publishing, the author gets a percentage of sales besides an initial down-payment. I’ve worked to do my art, I won’t last forever, I’m 86, but the paintings will go on a lot longer than I will. It is very important for me to be able to know that I have taken care of my son who suffers from disability. This resale royalty thing is not only about money, it is about love, and being able to give. It is about legacy. In the end, it is the best kind of generosity. Rosalind Drexler181

This testimonial is the classic emotional appeal proponents advance. It also evidences proponents’ misconception of markets and United States copyright law. Collectors buy and sell works of art. Their goal is to profit from those transactions, just as it is the artist’s goal to profit from the sale of their artwork. There is nothing inherently unfair about buying an item for one price and selling it for another. If Mrs. Drexler feels her artwork has been sold at “bargain rate[s]” perhaps she should raise those rates. Mrs. Drexler’s claim that she has been “left with nothing” is inaccurate. By her own admission, she was in fact paid for her art albeit at a “bargain rate.” Mrs. Drexler also compares the business of buying and selling art to publishing. What she fails to realize is that those authors with publishing deals do not get royalties due to the mere existence of their copyright. Those authors contracted for a percentage of sales.

Furthermore, for the purposes of copyright protection it is irrelevant that “work went much higher than the collectors paid for it.” Copyright protection is not granted based on the “sweat of the brow” (the notion that copyright is a reward for hard work).182 Mrs. Drexler has also not been “left out of her own story.” She has the moral rights, provided by VARA, of attribution and integrity that protect her personal connection to her works of art. Since she is 86 at least some of her work is covered by these moral rights. Finally, the testimonial ends with the resale royalty right’s internal identity crisis. “This resale royalty thing is not only about money, it is about love.” The Copyright Act forces a choice. Is it about money or love? In the case of the resale royalty right both answers duplicate the rights already granted to artists.

Third, federal legislation will conflict with well established principles of copyright law. The Equity for Visual Artist Act of 2011 (“EVAA”) is the most recent attempt to codify the resale royalty right on the federal level.183 This bill failed, but would have conflicted with well established principles of copyright law including, the first sale doctrine184 and the work for hire doctrine.185 The EVAA provides for a resale royalty right that is alienable, but not waivable. “The right to receive such royalty . . . may not be waived by the artist or his successor as copyright owner.”186

This provision conflicts with the well-established work for hire doctrine which grants to the employer the rights to any work created by the employee within the scope of his employment, as well as, the rights to any work falling within nine enumerated categories including, work made by signed written agreement.187 The EVAA in its current form conflicts with the work for hire doctrine because it would not allow the employee to waive his right, and paradoxically would allow the employer to collect on the right intended to benefit the employee.

The EVAA also conflicts with the free alienation of property and first sale doctrine. The first sale doctrine has a long history whose efficacy was recently reaffirmed in Supreme Court case of Kirtsaeng v. John Wiley & Sons, Inc.188 This case involved a Thailand national studying in the United States.189 Kirtsaeng had the Thai versions of textbooks sent to the United States where he resold them on eBay.190 The case resolved the conflict between the first sale doctrine and the copyright holder’s right to prevent unauthorized imports.191

The first sale doctrine began as a common law doctrine, but was codified in the 1909 and 1976 Copyright Acts. The doctrine itself was initially designed to prevent anti-competitive practices that restrained the alienation of chattels.192 In the early 17th century Lord Coke explained why the common law disfavored restrains on alienation. He wrote:

[If] a man be possessed of . . . a horse, or of any other chattell . . . and give or sell his whole interest . . . therein upon condition that the Donee or Vendee shall not alien[ate] the same, the [condition] is voi[d], because his whole interest . . . is out of him, so as he hath not possibilit[y] of a Reverter, and it is against Trade and Traffi[c], and bargaining and contracting between[n] man and man: and it is with the reason of our Author that it should ouster him of all power given to him.193

The Supreme Court went on to observe that “[a] law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly “against Trade and Traffi[c], and bargaining and contracting.” 194 The Supreme Court found further support for this view in the case of Bobbs-Merril v. Straus, which held that copyright laws were “not intended to create a right which would permit the holder of the copyright to fasten . . . a restriction upon the subsequent alienation of the subject matter of copyright after the owner had parted with the title to one who had acquired full dominion over it.”195 These cases directly impact the resale royalty right. The right literally does what the Supreme Court has said copyright law is not intended to do. The right also fails the constitutional test of promoting progress as it places a restriction on “the dissemination . . . of works already in existence.”196

The EVAA contains other problematic provisions. The EVAA also would require the Copyright Office to promulgate regulations to be followed by collecting societies and review audits done by those societies.197 Adherence to the first sale doctrine frees government from the administrative burden of trying to enforce restrictions upon difficult to trace, readily movable goods and avoids the selective enforcement inherent in any such effort.198 The EVAA would likely breed uncertainty through selective enforcement and if the law were widely unenforced it would breed disrespect for copyright law itself.199

Finally, EVAA would likely not withstand a challenge based on the first sale doctrine. The resale royalty right would suffer the same fate as the copyright holders’ ability to prevent unauthorized imports. The EVAA does not carve out an exception to § 109 as it adds exclusive rights to § 106. Therefore it would be subject to the limitations in §§ 107 to 122, just as § 602(a)(1) was in Kirtsaeng v. John Wiley and Sons, Inc.200 Moreover, the Supreme Court found that museums and other sellers of chattels relied on practices deeply embedded upon the first sale doctrine. Given the present state of first sale case law, the preference for contractual agreements in State law, and weak legal justifications it is unlikely that any bill resembling the EVAA will pass in the near future.

Fourth and finally, the United States is not required by any international treaty or agreement to codify the resale royalty right. Article 14 ter of the Berne Convention is an optional provision and more of a suggestion to member countries than anything else. The United States does not face any international consequences for its avoidance of the right. Nor does it jeopardize the national treatment principle by its lack of adherence.

VI. Conclusion

The United States should not enact resale royalty right legislation on the federal level. Instead, the right should be left to the individual States’ legislation and power to regulate within their boarders and/or to individual artist to contract for resale royalties. This approach will create infinite diversity in infinite combinations, maximize an individual’s freedom in the market, and encourage the market to naturally evolve from its current state. The Copyright Act has already granted to artists the proprietary incentive needed to promote the progress of their particular science. Artists should be educated about their statutory-grant of rights. That will enable them to more perfectly exploit the value of their work and ultimately permit the artist to “gain greater opportunity for authentic, autonomous creation.”201

Notes

  1. 1U.S. Const. art. I, § 8, cl. 8.
  2. 2Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966).
  3. 3L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  4. 4U.S. Const. art. I, § 8, cl. 8.
  5. 5Id.
  6. 6Patterson & Lindberg, supra note 3, at 48.
  7. 7Id at 49.
  8. 8U.S. Const. art. I, § 8, cl. 8.
  9. 9Jessica Talati, Copyrighting Stage Directions & the Constitutional Mandate to “Promote the Progress of Science”, 7 Nw. J. Tech. & Intell. Prop. 241 (2009) (discussing the significance and interpretations surrounding the “Progress Clause”).
  10. 10Id at 46.
  11. 11John Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, Wired, March 1994.
  12. 1245 F.2d 119, (2d Cir. 1930).
  13. 13Id at 121.
  14. 14Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  15. 15Patterson & Lindberg, supra note 3, at 50-55.
  16. 16Id.
  17. 17Id.
  18. 18Id at 50.
  19. 19U.S. Const. art. I, § 8, cl. 8.
  20. 20Talati, supra note 9, at 46.
  21. 21Patterson & Lindberg, supra note 3.
  22. 2217 U.S.C. § 106 (2012).
  23. 23Id at § 102(a).
  24. 24Feist Publications, 499 U.S. at 345.
  25. 25Id at 359.
  26. 2617 U.S.C. § 102.
  27. 27Id at § 106 (the exclusive rights are “[s]ubject to sections 107 though 122” all of which describe the limitations placed on the exclusive rights described in § 106).
  28. 28Patterson & Lindberg, supra note 3 at 110.
  29. 29Id at 120.
  30. 30Id at 121.
  31. 31Id.
  32. 32Id.
  33. 33Robert Spoo, Fair Use of Copyrighted Works in the Digital Age, California Business Law Practitioner vol. 23 num. 2 (Spring 2008).
  34. 34Patterson & Lindberg, supra note 3.
  35. 35Id at 196.
  36. 36Id at 132.
  37. 37Id at 128.
  38. 38Id.
  39. 39Spoo, supra note 33.
  40. 40Patterson & Lindberg, supra note 3.
  41. 41Id at 193.
  42. 4233 U.S. 591 (1834).
  43. 43Id at 592.
  44. 44Patterson & Lindberg, supra note 3, at 118.
  45. 45Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903).
  46. 46Patterson & Lindberg, supra note 3, at 110.
  47. 47Patterson & Lindberg, supra note 3, at 231.
  48. 484 Burr. 2303.
  49. 49Id at 2398.
  50. 50Michael B. Reddy, The Droit De Suite: Why American Fine Artists Should Have the Right to A Resale Royalty, 15 Loy. L.A. Ent. L.J. 509 (1995).
  51. 51Id at 513.
  52. 52Id at 514.
  53. 534 Burr. 2303.
  54. 54Id at 2398.
  55. 55Id.
  56. 56Id.
  57. 57Id.
  58. 58Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263 (2009).
  59. 59Diane B. Schulder, Art Proceeds Act: A Study of the Droit De Suite and a Proposed Enactment for the United States, 61 Nw. U. L. Rev. 19, 22 (1966).
  60. 60Neil F. Siegel, The Resale Royalty Provisions of the Visual Artists Rights Act: Their History and Theory, 93 Dick. L. Rev. 1, 2 (1988).
  61. 61Reddy, supra note 50, at 515.
  62. 62Id.
  63. 63Id.
  64. 64Id.
  65. 65Siegel, supra note 60, at 3.
  66. 66Id.
  67. 67Id.
  68. 68Jonathan D. Tepper, Le Droit de Suite: An Unartistic Approach to American Law, at 4 (Aug. 2007) (unpublished manuscript), available at http://works.bepress.com/jonathan_ tepper/1.
  69. 69Id.
  70. 70Id.
  71. 71Siegel, supra note 60, at 3.
  72. 72Id.
  73. 73Jon Baumgarten, Primer on the Principles of International Copyright, in Fourth Annual U.S. Copyright Office Speaks: Contemporary Coyright and Intellectual Property Issues 470, 471 (1992) (Prentice-Hall Law & Business).
  74. 74Jane Ginsburg, International Copyright: From A “Bundle” of National Copyright Laws to A Supranational Code?, 47 J. Copyright Socy. U.S.A. 265 (2000).
  75. 75Berne Convention for the Protection of Literary and Artistic Works (1979 text) [hereafter Berne Convention].
  76. 76Agreement on Trade-Related Aspects of Intellectual Property Rights 33 I.L.M. 81 (1994) [hereinafter TRIPS].
  77. 77Berne Convention, supra note 75, at art. 5.1-5.3.
  78. 78Ginsburg, supra note 74, at 278.
  79. 79Berne Convention, supra note 75.
  80. 80Id art. 6 bis.
  81. 81Id at para. 2.
  82. 82Id.
  83. 83Id at art. 6 bis, para. 3.
  84. 84Id at art. 14 ter.
  85. 85Id at para. 1.
  86. 86Id.
  87. 87World Intellectual Property Organization, Guide to the Copyright and Related Rights Treaties Administered By WIPO and Glossary of Copyright and Related Rights Terms, 39-43 (2003) (excerpt I) [hereinafter WIPO Guide].
  88. 88Berne Convention, supra note 75, at art. 14 ter, para. 2.
  89. 89WIPO Guide, supra note 87, at art. 5.3(4).
  90. 90Berne Convention, supra note 75, at art. 14 ter, para. 3.
  91. 91Id at art. 16, para. 3.
  92. 92TRIPS, supra note 76, at art. 3.
  93. 93Id at part III.
  94. 94Id at art. 3, para. 1.
  95. 95Natalie C. Suhl, Moral Rights Protection in the United States Under the Berne Convention: A Fictional Work?, 12 Fordham Intell. Prop. Media & Ent. L.J. 1203 (2002).
  96. 96Id at 1212.
  97. 97Patterson & Lindberg, supra note 3, at 167.
  98. 98William Strauss, The Moral Right of the Author, Study No. 4, in Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, U.S. Sen., 86th Cong., 1st Sess. 109-42 (1960).
  99. 99Patterson & Lindberg, supra note 3, at 167.
  100. 10017 U.S.C. § 106.
  101. 101Id.
  102. 102Id at §115(a)(2).
  103. 103Id at § 203.
  104. 104Id at § 106A.
  105. 105Suhl, supra note 93.
  106. 10617 U.S.C. §101.
  107. 107Id at §106A(c)(1).
  108. 108Id at §106A(c)(2).
  109. 109Id at §106A(c)(3).
  110. 110Id at §106A(e)(1).
  111. 111Id at §106A(d)(1).
  112. 112Reddy, supra note 50.
  113. 113Id.
  114. 114U.S. Copyright Off. Reg. of Copyrights, Droit de Suite: The Artist’s Resale Royalty (Dec. 1992).
  115. 115Stephanie B. Turner, The Artist’s Resale Royalty Right: Overcoming the Information Problem, 19 UCLA Ent. L. Rev. 329 (2012).
  116. 116P.R. Laws Ann. tit. 31 § 1401h (2010).
  117. 117Cal. Civ. Code Ann. § 986 (2012).
  118. 118S.D. Codified Laws § 1-22-16 (2013).
  119. 119Ga. Code Ann. § 8-5-7 (2012).
  120. 120P.R. Laws Act 55 (2012).
  121. 121Andrew Russeth, Court Ruling Reminds Art World That California Resale Royalty Law Remains in Effect, GalleristNY (April 8, 2013, 3:46 PM), http://galleristny.com/2012/06/court-ruling-reminds-art-world-that-california-resale-royalty-law-remains-in-effect.
  122. 122Estate. of Graham v. Sotheby’s Inc., 860 F. Supp. 2d 1117 (C.D. Cal. 2012).
  123. 123Ga. Code Ann. § 8-5-7 and S.D. Codified Laws § 1-22-16.
  124. 124Ga. Code Ann. § 8-5-3 (2012) and S.D. Codified Laws § 1-22-9 (2013).
  125. 125Id.
  126. 126Ga. Code Ann. § 8-5-7 and S.D. Codified Laws § 1-22-16.
  127. 127Id.
  128. 128Id.
  129. 129Id.
  130. 130Ga. Code Ann. § 8-5-7(a)(3).
  131. 131P.R. Laws Ann. tit. 31 § 1401h.
  132. 132Id.
  133. 133Id.
  134. 134Id.
  135. 135Id at § 1401c.
  136. 1361996 WL 539079 (P.R. 1996).
  137. 137P.R. Laws Act 55.
  138. 138Cal. Civ. Code Ann. § 986.
  139. 139Estate. of Graham, 860 F. Supp. 2d 1117.
  140. 140Cal. Civ. Code Ann. § 986(c)(1).
  141. 141Id at § 986(c)(2).
  142. 142Id at § 986(a).
  143. 143Id at § 986(c)(1).
  144. 144Id at § 986(a).
  145. 145Id.
  146. 146Id. at § 986(a)(1).
  147. 147Id. at § 986(a)(2) and (5).
  148. 148Id. at § 986(a)(5).
  149. 149Id. at § 986(a)(3).
  150. 150Id. at § 986(a)(7).
  151. 151Id. at § 986(b)(2).
  152. 152Id. at § 986(b)(6).
  153. 153Id. at § 986(c)(3).
  154. 154621 F.2d 972 (9th Cir. 1980).
  155. 155860 F. Supp. 2d 1117.
  156. 156P.R. Laws Act 55.
  157. 157Randall K. Filer, The “Starving Artist” – Myth or Reality? Earnings of Artists in the United States, 94 J.POL.ECON. 1, 56-75 (1986).
  158. 158Id.
  159. 159Jason Kakoyiannis, Resale Royalty Rights and The Context and Practice of Art Bargains, (Mar. 2006), http://www.jequ.org/files/note-final-2.pdf.
  160. 160Id at 15.
  161. 161Id.
  162. 162Id at 16.
  163. 163Id.
  164. 164Id.
  165. 165Id.
  166. 166Id at 15.
  167. 167Id.
  168. 168Id at 16.
  169. 169Id at 20.
  170. 170Reddy, supra note 50, at 517.
  171. 171Id.
  172. 172Id.
  173. 173621 F.2d 975-976.
  174. 1743P1 Nichols Cyc. Legal Forms § 49:61.
  175. 1756BP2 Nichols Cyc. Legal Forms § 136:27.
  176. 176Reddy, supra note 50, at 517.
  177. 177eBay, Prints: 2000-Now, http://www.ebay.com/sch/Prints-/360/i.html?_dmpt=Art_Prints&Date%2520of (Apr. 16, 2013).
  178. 178Esty, Art Prints, http://www.etsy.com/search?q=art%20prints&view_type=gallery&ship_to=US&ref=auto3 (Apr. 16, 2013).
  179. 179Sotheby’s Inc. and Christie’s Inc., Comments of Sotheby’s, Inc. and Christie’s Inc, in Response to Copyright Office’s Notice of Inquiry re Resale Royalty Right, Docket No. 2012-10, 77 Fed. Reg. 58175 (Sept. 19, 2012), 6 (Dec. 5, 2012), http://www.copyright.gov/docs/resaleroyalty/comments/77fr58175/Sothebys_Inc._and_Christies_Inc_Simon_J_Frankel.pdf.
  180. 180Id at 5.
  181. 181Artist Rights Society, Submission of Comments for the Equity For Visual Artists Act of 2011, 3 (Mar. 2013), http://www.copyright.gov/docs/resaleroyalty/comments/77fr58175/Artists_Rights_Society.pdf (emphasis added).
  182. 182Feist Publications, 499 U.S. 359.
  183. 183S. 2000, 112th Cong. (2011).
  184. 18417 U.S.C § 109(a).
  185. 185Id at § 201(b).
  186. 186S. 2000 § 3.
  187. 18717 U.S.C §§ 101 and 201(b).
  188. 188568 U.S. ___ (2013).
  189. 189Id.
  190. 190Id.
  191. 19117 U.S.C. §§ 109 and 602(a)(1).
  192. 192Kirtsaeng, 568 U.S. slip op. at 17.
  193. 193Coke, Institutes of the Laws of England § 360, p. 223 (1628).
  194. 194Kirtsaeng, 568 U.S. slip op. at 17.
  195. 195210 U.S. 339, 349-350 (1908).
  196. 196Id at 46.
  197. 197S. 2000.
  198. 198Kirtsaeng, 568 U.S. slip op. at 18.
  199. 199Id at 24.
  200. 200Id.
  201. 201Kakoyiannis, supra note 157, at 20.

More writing