Decisions in Brief

Decisions in Brief

By John C. Gatz

©2019. Published in Landslide, Vol. 11, No. 5, May/June 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.


Artists Falter in Preemption Battle over Resale Royalties

Close v. Sotheby’s, Inc., 909 F.3d 1204, 128 U.S.P.Q.2d 1769 (9th Cir. 2018). The plaintiffs, a collection of individual artists, previously sued multiple defendants who sold their art, including Sotheby’s and eBay (dealers), under the California Resale Royalties Act of 1976 (CRRA). The CRRA requires the seller of a work of fine art to withhold 5 percent of the sale price and pay it to the artist. On appeal, the Ninth Circuit ruled that claims under the CRRA were expressly preempted by the Copyright Act’s preemption provision, 17 U.S.C. § 301(a). However, the Ninth Circuit also found that claims prior to the 1976 Act’s effective date (January 1, 1978) were not preempted because the prior version of the Copyright Act at that time did not contain an express preemption provision.

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