Art Law

• Publication year: 2018
• Author: By Simon J. Frankel & Sean Howell

Art Law

By Simon J. Frankel & Sean Howell

2018 saw a number of developments in the field of art law of interest to California litigators. These include the severe curtailment of the only route for U.S. artists to recover resale royalties on works of fine art; a conclusion to litigation over "monkey selfies" that raised larger questions about copyright protection for works generated by non-human processes; the finale of a decade-plus dispute over two masterworks with a Nazi history at a Pasadena museum; clarification of the statute of limitations applicable to stolen works of art in California; the resolution of constitutional challenges to local ordinances requiring developers to fund public art; and the consideration of a novel legal defense to claims of copyright infringement brought by muralists and street artists.

Au Revoir, Droit de Suite: California's Resale-Royalty Statute Severely Curtailed in Close v. Sotheby's

While United States copyright law does not entitle artists to royalties for the resale of original works, some saw a path to recover such royalties under a 1976 California statute. That path was all but closed by the Ninth Circuit in Close v. Sotheby's, Inc.,¹ a 2018 case in which the court held the California law to be almost entirely preempted.

A number of nations recognize the droitdesuite (French for "right to follow"), under which artists receive a royalty for each resale of the original, tangible embodiment of their work. The right enables visual artists to capture some of the appreciation in value of their work following the initial sale.² Though the right has never been recognized at the federal level in the United States, California adopted it in 1976 in the California Resale Royalties Act ("CRRA"), becoming the first (and thus far only) state to do so.³ The CRRA requires the seller of "a work of fine art" to remit 5% of the purchase price to the artist.⁴ Legal scholars have long argued that the statute is preempted by federal copyright law, however, and compliance with the statute has been inconsistent, to say the least.⁵

Artists Chuck Close, Laddie John Dill, and others tested the Act's validity by filing suit in 2011 on behalf of a putative class against Sotheby's, Christie's, and eBay, alleging that the auctioneers had failed to remit the royalties as required under the CRRA.⁶ Defendants countered that the statute violated the dormant Commerce Clause, and that it was preempted by federal copyright law.

The Ninth Circuit addressed Defendants' dormant Commerce Clause argument in a 2015 appeal. The court then agreed that the CRRA runs afoul of the clause insofar as the statute applies to out-of-state art sales, but held that Plaintiffs' claims regarding in-state sales may still be viable.⁷ Following remand to the district court, the Ninth Circuit addressed Defendants' preemption argument in the 2018 case. The court held that the CRRA is expressly preempted by the Copyright Act of 1976, reasoning that the "first-sale doctrine" forecloses states from granting resale royalty rights to artists. This is so because, while the 1976 Copyright Act "grants artists the right to receive full payment on the first (and only the first) sale," the CRRA "fundamentally reshapes the contours" of this right by "forbidding artists from fully alienating copies of their artwork."⁸

The court held open the possibility that the statute may be valid as applied to a narrow range of works sold in the one-year window after the CRRA went into effect but before the 1976 Copyright Act was in place, remanding for the district court to make determinations regarding any such claims.⁹ Outside of those works, however, the opinion likely puts an end to claims to resale royalties in the United States by visual artists. Legislation to grant artists resale royalties was pending in Congress at the time of publication, but the bill is seen as a longshot.¹⁰

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Ninth Circuit Declines to Monkey Around in Naruto v. Slater, but Larger Issues Still Hanging

2018 saw the likely finale to litigation over a set of "monkey selfies" taken in 2011, with the Ninth Circuit ruling that a crested macaque named Naruto lacked standing to bring a copyright infringement claim against photographer David Slater over photos Naruto took with Slater's camera. The larger debate that the case sparked over copyright protection in works generated by automatic or otherwise non-human processes does not appear likely to be resolved any time soon, however.

The photos were created during a trip by Slater to track a group of macaques on an island in Indonesia. According to Slater, he wanted to get a close-up of the monkeys' faces with a wide-angle lens, but was unable to approach near enough to do so. Noticing the monkeys' interest in the camera, Slater set the camera up on a tripod and moved away. The monkeys approached and began to play with the camera, clicking the shutter button and in the process photographing themselves.¹¹

The legal wrangling over rights in the photos began almost immediately. After Slater published the photos in several news outlets, Wikimedia Commons uploaded them for use under a free content license, arguing that they were in the public domain because they had been taken by Naruto, not Slater.¹² Slater threatened to sue Wikipedia and other organizations that had used the photographs for copyright infringement (it appears that he has not yet done so).¹³ Meanwhile, People for the Ethical Treatment of Animals ("PETA") sued Slater and other entities on behalf of the macaque, arguing that Slater had infringed Naruto's copyright by publishing a book containing the selfies.¹⁴

The Ninth Circuit ruled against PETA in Naruto v. Slater, affirming the district court's holding that Naruto lacked statutory standing to sue on his own behalf. The court held that the inquiry began and ended with the literal language of the Copyright Act of 1976, stating that "[t]he Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute."¹⁵ Concurring, Judge N. Randy Smith argued that Naruto lacked constitutional standing as well, taking pains to distinguish a prior case in which the Ninth Circuit had held that a community of cetaceans could sue under Article III.¹⁶

Monkey business aside, the question of whether copyright protection should extend to paintings, writings, and musical works that feature non-human contributions will only become more pressing as artificial intelligence continues to advance. The Copyright Office, in response to Slater's attempt to register the photos, stated in 2014 that it would not register works that were not "created by a human being."¹⁷ However, courts will likely be forced to...