Legislation that would require royaltiespayments for continuing use

of artworksto be paid to artists and their heirs for resales of artworks

in the state. Such royalties would benefit artists and their heirs, who
under the current law, receive nothing from such resales.
LAYMAN
Task Statement:
1. make the case for the legislation and respond to the arguments
against
2. persuasively deal with the single legal issue involved
The proposed legislation, Franklin Assembly Bill 38 (F.A. 38), seeks to
afford artists and their heirs the right to receive a 5% resale royalty
payments for continuing use of artworksfor resale of their artworks in
the state. Under the current law, artists and their heirs receive nothing
from such resales.
Why its needed
The proposed legislation entitling artists to fair return for the
exploitation of their creations is both necessary and appropriate as a
matter of equity. First, works of visual arts are distinct from other types
of creative works (such as music, literature, and drama). Specifically,
unlike other creative workswhere value is derivative of their
intangible copyrightsthe majority of the value of an artists visual art
is from the sale of the original physical work. Under the current law,
the artists and his or her heirs, are restricted to the profits made solely
from that initial sale of the oringal physical work and are not entitled to
any back end remuneration.
By contrast, those paintings which are resold by collectors reap
large profits due to the works appreciated value. While those opposed
to the legislations enactment argue that the 5% resale royalty will
deprive galleries of the resources used to develop a market for the
artists work, they fail to recognize that legislation does not aim to
deprive galleries of their profitsrather, it aims to more appropriately
balance the profits earned between creator and seller. Under the
current law, the disparity between the profits are vastfor example, a
sculpture by artists Huggins, which was purchased by a colletor for $45
was sold at auction for $780K, an amount solely enjoyed by the
collector while the artistss widow lives in proverty. If anything, the
legislation will encourage a market for visual artsthe resale royalty
will provide an incentive for artists to continue to produce by defraying
costs unique to visual artsis, such as having to pay for supplies (a cost
not shared by galleries).
Why Objection is Not Valid

the argument that the legislation makes no disitincction between

well-off living artisas and those few deceased artisits whose families
might be in need is flawed. To enact such legislation would present an
unfair burden on congress to essentially predict the demands of the art
market which are continuously in fluctuation. The proposed legislation
does not ask for welfarerather it aims to set a common bar across all
visual artists and artworks that is consistent with the American call for
justice. To argue that a successful singer songwriter or author is not
entitled to royalties for his creations because he has enoughas those
who are opposed to the legislation doruns afoul to the American way
of life and essentially attempts to punish those who are successful.

Franklin v. E. Updates
1976 Copyright Act 301(a) preemption provision sets forth 2 criteria
which must both be met for preemption:
1. the work must come within the subject matter of copyright (102)
2. The rights involved must be within the exclusive rights granted to a
copyright owner (106)
Like the 1909 copyright actthe
First, visual arts, unlike a novel or a musical composition, does come
within the subject matter of copyright. As the court in Franklin stated,
copyright protects the expression of ideas but not the ideas
themselves.
The court in Franklin set forth a two part test required for preemption
to be met: (1)the work must come within the subject matter of
copyright (102) and
(2) The rights involved must be within the exclusive rights granted to a
copyright owner (106).
First, visual arts, unlike a novel or a musical composition, does come
within the subject matter of copyright. Under section 102 of the
copyright act, pictorial, graphic, or sculputrual works are explicitly
included categories. The second element is also met. Specifically, the
misappropriation of profits garnered from the exploitation of an original
visual art has been gathered at cost, is time sensentive, and
constitutes free riding by a competitor, and so reduces the incentive to
produce the service. Specifically, galleries unfairly profit from the
explotation of oringal works of artists at such a level that it is highly
likely to disinsentives artists from continuing to produce. The proposed
act does not impinge upon the artists right ot vend a copy of work her
she has created, as the 1976 copyright act only attaches after the
artist has sold the copy of work.

K argument
Morover, the act doesnt not restrict the transfer of a ocpy of the work
it may be transferred without restriction. As the Samuleston court
resoned, a resale may create a liability to the articist (in that roylaties
may be owed) and, ath te same time, constitute an exercise of a right
under the 19- act does not make the former legal restraint on the
latter, whatever the economic implications of the columabia act may
be. According to section 109(a) the owner of a particular copy is
entitled, without the authority of the copyright owner, to sell or
otherwise dispose of the posssion of that copy.