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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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