Saturday, July 14, 2018

More on the California Resale Royalty Decision

Lots of coverage over the last week.  Nicholas O'Donnell has a very good, comprehensive overview of the twists and turns the case has taken.  His conclusion:  "Barring unexpected developments (or Supreme Court intervention and reversal), this is probably the end of the line for droit de suite in America."

The New York Times report is here:  California Tried to Give Artists a Cut. But the Judges Said No.

Brian Frye says the decision is "a big deal, but should not come as a surprise to anyone."

Jori Finkel's report in The Art Newspaper points out that "the ruling could also open the door for Christie’s and Sotheby’s to hold more contemporary auctions in Los Angeles, free of both the burden of paying the 5% royalty and the pressure of navigating and litigating this issue."  And she includes a glass half-full take from ARS's Ted Feder:  "On the bright side, the Ninth Circuit decision recognises this federal pre-emption, which in our view argues for adoption of a national right, covering all the States."

On the glass half-empty side, echoing O'Donnell's conclusion, Daniel Grant's Observer report declares that "artist resale royalties in the United States, like Old Marley in the Dickens story, are as dead as a door-nail."  I think this take may overstate things.  Yes, resale royalties are currently a little deader than they were before this case, in the sense that there used to be one state that had them and now there are (and can only be) none.  But it's at least possible that, on the national level, there may be slightly more momentum for resale royalty legislation after this decision than there was before.  It's still pretty unlikely, but I don't think we can rule it out completely.  I still think there's a version of a resale royalty law that make sense.