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.
The bill would codify “droite de suite” rights that are available in many other countries, rights to royalties on the resale of works of art. The ART would give visual artists 5% of the resale price if their work resells at auction for more than $5,000. California’s efforts to regulate resales was struck down on dormant Commerce Clause grounds in 2012 when Chuck Close and others sued under the California law to recoup royalties from Christie’s, Sotheby’s and eBay. The appeal was argued in April and awaits a decision.
Rep. Nadler introduced a similar bill in 2011, which was never passed. In the interim, the United States Copyright Office assembled testimony, and then issued a report on their updated analysis of resale royalties last December. This report concluded, most relevantly, that there was “no evidence to conclusively establish that [establishing resale royalties] would harm the U.S. visual market.” The Report thus made the 10 recommendations for resale royalty legislation. Nadler’s bill incorporates most of the report’s recommendations, some of which changed substantially material terms from the previously-proposed legislation. Below is a side-by-side comparison of the most material terms of the two bills.
An article by Christopher Rauschenberg (son of Robert Rauschenberg) on the Huffington Post yesterday urges passage, and notes that the House will consider the bill next Tuesday. Julia Halperin at the Art Newspaper reported yesterday as well that Howard Coble (R-NC), chairman of the committee, stated at a July 15, 2014 hearing that he was “not uncomfortable with the concept of a resale royalty.” Halperin also reported that the bill has gained six sponsors, including Sam Farr (CA) and Janice Schakowsky (IL). As of this morning, the bill has a total of sixteen sponsors: Representatives Louise McIntosh Slaughter (D-NY), James Moran (D-VA), Wm. Lacy Clay (D-MO), Eliot L. Engel (D-NY), Donna M. Christensen, (D-VI), Judy Chu (D-CA), John Lewis (D-GA), Janice Schakowsky (D-IL), Ed Pastor (D-AZ), Maxine Waters (D-CA), Sam Farr (D-CA), Mark Pocan (D-WI), Theodore E. Deutch (D-FL), and Sheila Jackson Lee (D-TX).
Christie’s and Sotheby’s have lobbied against the bill.
If there is indeed a vote on Tuesday, it would progress further than the 2011 attempt, though the Senate would still await. In an election year (the bill must become law before the new Congress), handicapping those odds is anyone’s guess.