124 Yale L.J. F. 1 (2014-2015)

handle is hein.journals/yljfor124 and id is 1 raw text is: 



THE  YALE   LAW   JOURNAL FORUM
APRIL 25, 2014




The Unconvincing Case for Resale Royalties

Guy  A. Rub


INTRODUCTION

    Here  we  go  again. In  late February  2014  a group  of  congresspersons
introduced  a bill- The  American  Royalties  Too Act  of 2014  (known  for its
catchy abbreviation: the ART  Act),' which, if passed, will grant visual artists' a
right to collect royalties when  their artworks  are  resold. This is the  fifth
attempt  to pass  such  legislation. However,   unlike their predecessors,  the
proponents  of the  current bill are now armed  with  a comprehensive   report,
published  by the U.S. Copyright  Office in December  2013, urging Congress  to
consider such resale royalty rights.4
    This Essay  casts doubts on the  desirability of this legislative initiative by
focusing on  a fundamental   question: Does  our legal system  need to provide
additional subsidies to visual artists?
    There   are  two  main   rationales  for  enacting  resale  royalty rights.
Historically, resale royalty initiatives, both domestically and  abroad,  were
motivated  by a romantic  notion  that artists are so poor and in such  a weak
bargaining  position that they deserve special legal protection. In addition, the
Copyright  Office, as well as the proponents of the ART   Act, argue that in its
current  form,   the  Copyright   Act  disfavors - maybe   even   discriminates





1.  S. 2045, 113th Cong. (2014); H.R. 4103, 113th Cong. (2014).
2.  The term visual artists is commonly used in the discussion on resale royalty rights. As
    used in this Essay, visual artists are artists who create works that are typically sold in one or
    very few copies. Painters and sculptors are the archetypal examples.
3.  Previous bills that introduced resale royalty rights are the Equity for Visual Artists Act of
    2011, S. 2000, 112th Cong. (2011); Visual Artists Rights Act of 1987, S. 1619, looth Cong.
    (1987); Visual Artists Rights Amendment of 1986, S. 2796, 99th Cong. (1986); Visual
    Artists' Residual Rights Act of 1978, H.R. 11403, 95th Cong. (1978). Additional initiatives, at
    least since the 1960s, did not result in the introduction of a bill.
4.  U.S. COPYRIGHT OFFICE, RESALE ROYALTIES: AN UPDATED ANALYSIS (2013) [hereinafter
    COPYRIGHT OFFICE REPORT]. The position taken in this report is dramatically different from
    the position taken by the Copyright Office in the past. See U.S. COPYRIGHT OFFICE, DRolT
    DE SUITE: THE ARTIST'S RESALE ROYALTY (1992) (opposing the enactment of resale royalty
    rights).


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