In the news now, a legal case pitting artists against the owners of their art. At question is the California Resale Royalty Act, a law which requires resellers of art to pay a 5% royalty fee. In practice, most galleries and “re-sellers” (e.g., Ebay) never really pay this fee. Which MAKES ARTISTS MAD! So they’re suing a few auction houses–Christie’s and Sotheby’s.
According to Christie’s and Sotheby’s, this is a Constitutional Question of Copyright. Is the California Act superseded by the Copyright Act of 1976? A key passage from 17 US Code, Section 301(a): “On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 [17 USCS Sect. 106] in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 [17 USCS Sects. 102 and 103], whether created before or after that date and whether published or unpublished, are governed exclusively by this title [17 USCS Sects. 101 et seq.]. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”
In other words: the 1976 Copyright Act is the law of the land when it comes to copyright. So is an art royalty the same as an art copyright? Two passages from the California Act:
Section 988(b): “Whenever an exclusive or nonexclusive conveyance of any right to reproduce, prepare derivative works based on, distribute copies of, publicly perform, or publicly display a work of art is made by or on behalf of the artist who created it or the owner at the time of the conveyance, ownership of the physical work of art shall remain with and be reserved to the artist or owner, as the case may be, unless such right of ownership is expressly transferred by an instrument, note, memorandum, or other writing, signed by the artist, the owner, or their duly authorized agent.”
Section 980 (a)(1): “The author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof as against all persons except one who orginally and independently creates the same or similar work.”
Hmm…sounds like a discussion of copyright to me.