Jeremy Cohen

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The Constitution mandates Congress to protect the arts and sciences directly by creating an exclusive right called copyright. However, visual artists such as painters, sculptors, and photographers in the United States still cannot participate in the significant profits from the secondary sales of their copyrighted works at public and private auctions. In over eighty countries worldwide, the droit de suite, also known as the Artist Resale Royalty (ARR), grants visual artists such royalties. Unfortunately, the United States currently lacks such a royalty, despite multiple unsuccessful attempts by Congress to pass federal legislation. Although California enacted its own version of the royalty, it was eventually preempted by federal copyright law in the Ninth Circuit case, Close v. Sotheby’s Inc. Several law review comments have cautioned against implementing a federal resale royalty due to the unique history of property rights in the United States, the first sale doctrine, and the economics of the secondary art market. Nonetheless, the 2013 Copyright Office Resale Royalty Report thoroughly analyzed and supported the adoption of the ARR, but acknowledged that takings claims could potentially be raised against the royalty. By examining the failed resale royalty legislation attempts, the California Resale Royalty Act, subsequent case law like Close v. Sotheby’s Inc., and international examples of the royalty, this Comment explores the most effective approach to drafting federal legislation for the ARR while addressing possible takings claims. Through a detailed analysis of regulatory and the most recent per se takings jurisprudence in the 2015 Supreme Court case Horne v. Department of Revenue (Horne II), this Comment concludes that takings claims will fail if the statute defines the royalty as derived from the copyright itself rather than the physical property being sold and resold. This approach firmly establishes the royalty within the Copyright Statutes without disrupting United States law and doctrine. It is high time for the United States to fully uphold the principles of the Constitution and the Berne Convention by incorporating an ARR right into the copyright statutes.