A federal district judge has struck down as unconstitutional a California law that gave artists a part of the profits when their work is resold.
The artists Chuck Close and Laddie John Dill and the estate of the artist Robert Graham brought a class-action suit in November against the auction giants Sotheby’s and Christie’s, and against eBay, arguing they had failed to pay them money owed under the California Resale Royalties Act. That act, which took effect in 1977, was the first of its kind passed in the United States. It required state residents who resold a work of art, even out of state, to pay the creating artist 5 percent of the price over $1,000; anyone selling art in California was also subject to the law.
Artists in most of the United States have long complained that unlike composers, filmmakers or writers, they do not receive a share of any future sales — known by the French expression droit de suite — under copyright law.
In her ruling on Thursday, Judge Jacqueline H. Nguyen did more than simply find against Mr. Close and his colleagues: Because the law has the effect of controlling sales “wholly outside the boundaries” of California, she ruled that it violates the commerce clause of the Constitution and that therefore “the entire statute must fall.”
Eric George, the lawyer who brought the suit, said he would appeal. “The artist protection law was properly enacted by California’s legislative and executive processes, pursuant to powers the U.S. Constitution reserves to the states,” he said. “We are confident, as both sides have always believed, this case will ultimately be resolved by the Ninth Circuit Court of Appeals, which already upheld this very statute in 1981.” As it turns out, Judge Nguyen was appointed two weeks ago to that court.
Spokespeople for Christie’s and Sotheby’s said they were very pleased with the decision.
A bill to institute a national resale royalty law has been introduced in Congress. “A federal law is ultimately the solution,” said Robert Panzer, executive director of VAGA, a company that represents the copyright interests of artists.
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