Experimenting With State-Enacted Resale Rights
34 Pages Posted: 3 Jul 2019 Last revised: 12 Aug 2019
Date Written: June 20, 2019
Current federal law does not require sellers of fine art to pay a share of the sale price to the artists, although Congress and federal agencies have been debating the advantages and disadvantages of such a duty, commonly referred to as Artists’ Resale Rights (ARR), since the 1970s. What is often missing from this discourse is the role that state law might play in this ecosystem. This issue, and especially California’s 1976 ARR law, the only state-enacted ARR to date, is the focus of this Article.
States are often said to be the laboratories of democracy as they can experiment with various legal rules and produce rich comparative empirical data. The Article explores whether states can be the laboratories of ARR as well. It reaches three conclusions: First, there is a vibrant debate concerning the impacts and overall desirability of resale royalties, but that debate is driven by relatively scarce empirical data. Second, if states decide to adopt ARR they can provide some of that missing information. Third, subject to minor restrictions, states are allowed to enact ARR legislation, and the recent Ninth Circuit decisions that held the California ARR act unconstitutional are, for the most part, misguided, as it does not fully recognize the important role that states play in the markets for creative goods.
Keywords: Preemption, Copyright, Resale Royalties, Fine Art, California Law
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