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Soliciting Sign-On for DMCA § 1201 Rulemaking

posted by Linda Downs


CAA has signed on to this Petition to the US Copyright Office for Proposed Exemption Under 17 U.S.C. 1201 to the 1998 Digital Millennium Copyright Act (DMCA) for the use of audiovisual media by college and university students or faculty in an educational setting. The DMCA prevents users from unlocking digital media or software. Congress has allowed review of the DMCA every three years to determine whether the law is affecting legitimate use of audiovisual material. In compliance to this three-year review the US Copyright Office has requested that examples be gathered of evidence where students or faculty were stopped from including a video clip in their teaching materials because of no access to decryption codes.

Student lawyers at American University are working on gathering examples and would appreciate hearing from those CAA members who have attempted to use audiovisual material from DVDs or off the web and were prevented from doing so. Please refer to the Google Form created to gather evidence and provide an easy forum for individuals to share their stories. This information will then be sent to the US Copyright Office to demonstrate the need for an exemption for students and faculty use of locked audiovisual materials. Deadline: December 30, 2014.

We would also like to share a piece for Forbes, written by Peter Decherney, which is an interesting read about some of the technology policy issues raised by the DMCA rulemaking.

Thank you for participating in this important petition.



Art Authentication Protection Bill

posted by Linda Downs


An important and potentially precedent-setting Bill (S13.04) has been introduced into the New York State Assembly: http://assembly.state.ny.us/leg/?default_fld=&bn=S06794&term=2013&Summary=Y&Actions=Y&Text=Y. This legislation has been introduced to offer protections to art historians, art curators, independent art scholars, conservators, and other qualified experts who submit good faith opinions on the authenticity, attribution, or authorship of works of art from unsubstantiated law suits. This Bill has the support of the New York City Bar Association Art Law Committee and the Center for Art Law in New York.

Your Assemblyman/woman in the New York State Assembly needs to hear directly from you. Please send a letter, email or phone message supporting passage of this Bill by the New York State Assembly: http://assembly.state.ny.us/mem/.

Sincerely,

Anne Collins Goodyear, President
Linda Downs, Executive Director and CEO




On March 10–11, 2014, the United States Copyright Office (USCO) held a series of public roundtables in Washington, DC, exploring the question of “Orphan Works and Mass Digitization.”[1] Collectively, these discussion panels constituted a follow up to a Notice of Inquiry circulated by USCO in the fall of 2012, in response to which CAA filed reply comments in March 2013.[2] Given CAA’s long advocacy of legislation to offer protection to those individuals and institutions using orphan works, and after consulting with CAA members familiar with concerns related to orphan works,[3] I represented the organization in two sessions, one addressing the “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs” (Session 4) and the other “Types of Users and Uses Subject to Orphan Works Legislation” (Session 5).[4]

“Orphan works” constitute a class of materials for which no copyright owner can be located.[5] They have long posed a thorny challenge for scholars or artists who might seek to reproduce them, but who cannot locate the creator or a source from which to license them for purposes not considered “fair use.” As a publisher of leading journals—Art Bulletin and Art Journal, and caa.reviews—and an advocate for its members who might similarly seek to use orphan works, CAA has consistently argued in favor of orphan works legislation that 1) would significantly limit the liability of a user of an orphan work who had executed a diligent search for the work’s copyright owner, and 2) provide a safe harbor for not-for-profit cultural institutions, engaged in non-commercial activities, that had exercised similar care and that took steps to cease the infringement. At the same time, CAA has spoken to the importance of the attribution of the work and has argued that if a copyright holder comes forward that rights holder be entitled to a reasonable licensing fee if, indeed, the use is not considered “fair” as allowed under the law.

Consistent with positions taken by CAA previously, the organization argued that all copyrighted works, including photographs, should be protected by orphan works legislation. Photographs, which can be notoriously difficult to associate with their makers, have proven particularly tricky as a group of objects, actually being excepted from a directive, intended to facilitate the non-commercial public interest use of orphan works, passed by the European Union.[6] However, not to consider photographs as part of the larger category of orphan works would be extremely limiting from the perspective of CAA given the strong interest of its members in sources of visual information. Categorically excluding photographic and other works of visual art from orphan works eligibility would disadvantage users of images, including artists, scholars, and publishers, who would face continued risks of being sued for copyright infringement despite being unable to determine the identity of the copyright owner at the time of their use. The purpose of orphan works legislation is to mitigate the legal risk of using works that are part of our shared culture. It is because those risks can have chilling implications, adversely affecting creative work by artists and scholars, that CAA has been committed to support orphan works legislation.

Given the diverse range of purposes to which copies of orphan works might be put by its members, CAA has argued that both commercial and non-commercial uses of such material should be protected, given the extraordinary difficulty of teasing apart such interests. Because artists (like scholars) can be both creators and users of copyrighted items, they may seek to make and market work incorporating reproductions of orphan works. In similar fashion, academic or independent scholars or museum professionals make seek to illustrate orphan works in publications made available for sale. While recognizing that a voluntary registry (or registries) of copyrighted works, such as photographs might be useful, CAA does not endorse requiring such registration, nor does it feel that the terms of a “diligent search” for the holders of copyright of orphaned works should be prescribed, arguing instead that the best approach to such research would be better determined on a case-by-case basis.

Although previous legislation, S. 2913 (the Shawn Bentley Act) faltered in the House of Representatives in 2008, and was thus not enacted into law, USCO is now reexamining the potential value of pursuing orphan works legislation anew—both with regard to the occasional or isolated use of orphan works as well as mass digitization. These efforts reflect the influence of new technology and ongoing litigation, such as cases concerning Google Books and the HathiTrust, where mass digitization was found by the US District Court for the Southern District of New York to constitute “fair use.”[7]

The growing reliance of many libraries and archives upon the principle of “fair use” as a justification for digitization has led USCO to consider whether this defense obviates the need for orphan works legislation. CAA has argued that this is not the case, recognizing that some uses of copyrighted material may not constitute “fair use.” Thus CAA continues to appreciate the value of such legislation to clarify the class known as “orphan works” to protect the needs of its membership, even as it advocates for the development of best practices guidelines for the fair use of copyrighted material.

CAA intends to submit comments related to the roundtable by USCO’s filing deadline of April 14th. Should any CAA members wish to offer thoughts related to this topic to be considered in relation to such a filing by CAA, please contact Executive Director Linda Downs (ldowns@collegeart.org) or President Anne Collins Goodyear (AGoodyear@bowdoin.edu) by April 7th.

Endnotes


[1] For more information on this event and other Notices of Inquiry by the US Copyright Office (USCO) on this topic, please see: http://www.copyright.gov/orphan/. Transcripts and video of the roundtables will be posted when they become available on the website of the USCO.

[2] CAA’s submission of these comments is described in CAA’s resources on “Intellectual Property and the Arts” which provides a link to these comments: http://www.collegeart.org/ip/orphanworks.

[3] For their generosity with their time and expertise, I thank Jeffrey P. Cunard, Christine L. Sundt, Judy Metro, Doralynn Pines, Eve Sinaiko, Linda Downs, and Betty Leigh Hutcheson. Chris Sundt and Jeff Cunard generously provided comments on earlier drafts of this posting, for which I am grateful. CAA’s long history of involvement with orphan works is detailed in CAA’s recent submission of comments, prepared by CAA counsel Jeffrey P. Cunard, on Orphan Works and Mass Digitization to USCO, in March 2013; please see: http://www.copyright.gov/orphan/comments/noi_11302012/College-Art-Association.pdf. http://www.collegeart.org/ip/orphanworks.

[4] Due to the strong outpouring of interest in the topic, participation by each organization had to be limited, and CAA prioritized these sessions.

[5] Further discussion of orphan works can be found on CAA’s website under “Intellectual Property and the Arts,” at http://www.collegeart.org/publications/ow.

[6] These challenges and the directive passed by the European Union are discussed in the February 10, 2014 USCO Notice of Inquiry for Orphan Works and Mass Digitization, available at http://www.copyright.gov/orphan/. See specifically the discussion of the topics raised by Session 4: “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs.”

[7] For more information on these decisions, including links to them, please see: See http://www.publicknowledge.org/files/google%20summary%20judgment%20final.pdf and Andrew Albanese, “Google Scanning is Fair Use Says Judge,” Publishers Weekly, October 11, 2012. http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/54321-in-hathitrust-ruling-judge-says-google-scanning-is-fair-use.html. I thank Chris Sundt for recommending these resources.



CAA Participates in Humanities Advocacy Day 2014

posted by Michael Fahlund


Humanities Advocacy Day 2014, sponsored by the National Humanities Alliance (NHA), took place in Washington, DC, on Monday and Tuesday, March 10 and 11, 2014. As a member of NHA, CAA supports that organization’s advocacy efforts and sends representatives to its annual meeting each year. CAA’s participation in these activities allows the association to promote the visual arts and to persuade others—in this case the members of both houses of Congress—to embrace the value of the humanities in education and in daily life.

The annual meeting on Monday included an opening welcome by George Washington University’s president, Steven Knapp, followed by a presentation by Stephen Kidd, NHA executive director, outlining the alliance’s advocacy agenda for the year. Knapp introduced additional speakers whose interests and projects intersect with the NHA’s four-pronged argument for stressing the value of the humanities: promoting opportunity for all Americans, fostering innovation and economic competitiveness, ensuring productive global engagement, and strengthening civic knowledge and practice. Knapp also identified two initiatives outside Congress to promote the humanities in the public sphere: Humanities Working Groups for Community Impact (see item 5) and Call for Videos. Aimed directly at the public rather than elected officials, these initiatives will help to establish to those outside the academy that the humanities are an area worth funding.

David Scobey, executive dean of the New School for Public Engagement, presented a talk called “E Pluribus Anthology: Why American Communities Need the Humanities,” which advocated a return to civic engagement as a way of reigniting the humanities. Carol Muller, professor of ethnomusicology at the University of Pennsylvania, discussed a community project that she directs, West Philadelphia Music, which amplified Scobey’s argument. Other speakers during the day included Elva LeBlanc, president of the Northwest Campus of Tarrant County College, who spoke on the relevancy of higher education and the importance of preparing students for change and complexity; and Francisco G. Cigarroa, chancellor of the University of Texas System. In the afternoon, Humanities Advocacy Day participants received issue briefs and background material concerning proposed funding levels for federal humanities programs and position papers that were helpful in preparing for congressional visits.

On Tuesday, six NHA delegates from the state of New York (listed in the next paragraph) visited the offices of Senators Kirsten Gillibrand and Charles Schumer and Representatives Jerrold Nadler, Eliot Engel, Carolyn Maloney, Tom Reed, and José E. Serrano. In each instance, the group urged senators and representatives to support specific fiscal-year budgets for the National Endowment for the Humanities ($154.4 million), the Institute for Museum and Library Services ($226.5 million), and the Library of Congress ($593 million), and to properly fund the National Historical Publications and Records Commission and Title VI/Fulbright-Hays international programs. NHA delegates also asked their legislators to sign “Dear Colleague” letters in support of these budgets based on the alliance’s funding recommendations, which are higher than those proposed by the Obama administration.

The New York delegates from NHA were: Kathleen Fitzpatrick, director of scholarly communication for the Modern Language Association; Peter Berkery Jr., executive director of the Association of American University Presses; Jennifer Steenshorne, junior associate editor for Columbia University Libraries; Jonathan Gilad, program assistant at the American Political Science Association; Michael Fahlund, CAA deputy director; and Betty Leigh Hutcheson, CAA director of publications.




US Senators Tammy Baldwin (D-WI) and Ed Markey (D-MA) and Congressman Jerrold Nadler (D-NY) have introduced legislation to level the playing field for visual artists in the United States by establishing copyright protections for their intellectual property.

“Artists and arts organizations make valuable contributions to our communities and strengthen our quality of life. Just as our copyright laws extend to musicians and authors to encourage their artistic creativity, they should also apply to our visual artists,” said Senator Baldwin, who serves on the National Council on the Arts. “The ART Act is a commonsense measure that helps protect the intellectual property of our artists.”

“Our visual artists are critical cultural contributors, and the ART Act ensures they are fairly compensated for their work,” said Senator Markey. “Their creativity is a currency that should be properly valued. The ART Act also brings the United States in line with over seventy other countries, so that American artists can receive royalties when their works are sold overseas.”

“American artists are being treated unfairly,” said Congressman Nadler, who first introduced a version of the ART Act in 2011 and serves as the Ranking Democrat on the Courts, Intellectual Property, and Internet Subcommittee of the House Judiciary Committee. “At a time when more than seventy other countries properly compensate visual artists for their work, it is time for the United States to do the same. The ART Act will ensure that visual artists get the compensation they deserve and will no longer be at a disadvantage on the international art market. It is the only fair thing to do.”

“Visual artists are the only members of the creative community in the United States who do not receive residual payments for their works. Composers, lyricists, actors, playwrights, screenwriters all deservedly receive royalties for the later productions, performances, or sales of their works,” said Frank Stella, one of the most renowned artists in the world and recipient of the National Medal of Arts by President Obama in 2009. “Unfortunately, visual artists in the US do not earn a penny in residual or resale payments. The benefits derived from the appreciation in the later sale of their works accrue entirely to the collectors, auction houses, and galleries. The adoption of the droit de suite in my country is therefore long overdue.”

Under current copyright law, visual artists—painters, sculptors, and photographers—are denied the ability to fully benefit from the success of their work over time. Unlike recording artists or publishers who, if successful, sell thousands of copies of their work and recoup a royalty from each purchase, artists sell their work only once.  If they are successful, the price of their work increases but they recoup nothing if their original work is resold at a much higher price. The benefits derived from the appreciation in the price of a visual artists’ work typically accrues to collectors, auction houses, and galleries, not to the artist.  In addition, United States artists are at a disadvantage in the global art market where more than seventy other countries have provided resale royalty rights for visual artists.  The American Royalties, Too (ART) Act of 2014 remedies this inequity by providing a modest resale royalty right for visual artists.

The ART Act would:

  • Provide a competitive resale royalty of five percent of the sales price (up to $35,000) for any work of visual art sold at auction for $5,000 or more
  • The resale royalty applies to any auction where the entity conducting the auction has sold at least $1 million of visual art during the previous year
  • Royalties are collected by visual artists’ copyright collecting societies who must distribute the royalties to the artists or their heirs at least four times per year
  • Allows US artists to collect resale royalties when their works are sold at auction in the European Union and more than seventy other countries
  • The ART Act requires further study by the Copyright Office after five years to determine the effects of the resale royalty on the art market and whether it should be expanded to cover works sold by dealers and other art market professionals

The ART Act includes many recommendations from the US Copyright Office’s December 2013 report, entitled Resale Royalties: An Updated Analysis.



Obama and Art History

posted by Linda Downs


The College Art Association has great respect for President Obama’s initiative to provide all qualified students with an education that can lead to gainful employment. We support all measures that he, Congress, State Legislatures and colleges and universities can do to increase the opportunities for higher education. However, when these measures are made by cutting back on, denigrating or eliminating humanities disciplines such as art history, then America’s future generations will be discouraged from taking advantage of the values, critical and decisive thinking and creative problem solving offered by the humanities. It is worth remembering that many of the nation’s most important innovators, in fields including high technology, business, and even military service, have degrees in the humanities. Humanities graduates play leading roles in corporations, engineering, international relations, government, and many other fields where their skills and creating thinking play a critical role. Let’s not forget that education across a broad spectrum is essential to develop the skills and imagination that will enable future generations to create and take advantage of new jobs and employment opportunities of all sorts.

Read more coverage on this topic:

http://www.washingtonpost.com/blogs/answer-sheet/post/how-art-history-majors-power-the-us-economy/2012/01/06/gIQAUv36hP_blog.html

http://www.insidehighered.com/news/2014/01/31/obama-becomes-latest-politician-criticize-liberal-arts-discipline

http://chronicle.com/article/No-Laughing-Matter-/144327/?cid=at&utm_source=at&utm_medium=en



Filed under: Government and Politics

NHA Memo to Members

posted by Linda Downs


Stephen Kidd, executive director of the National Humanities Alliance (NHA), sent the following email on January 15, 2014.

NHA Memo to Members

Dear NHA Member Representatives,

Please click here for a new Memo to Members. This edition features:

  • Capitol Hill news, including an overview of humanities funding in the proposed omnibus spending bill
  • National Endowment for the Humanities news
  • Studies, reports, and initiatives
  • A compendium of humanities news articles and essays
  • Federal grant opportunities

We encourage you to share this memo with your colleagues. If you have information to suggest for a future edition, please contact Erin Mosley at emosley@nhalliance.org.




The U.S. Copyright Office today publicly released a report on the issue of resale royalties for visual artists, or the “droit de suite.” The report was requested by Congressman Jerrold Nadler and Senator Herb Kohl in 2012, and is an adjunct to the Office’s 1992 report on the same topic. Some seventy countries have enacted resale royalty provisions in their laws, over thirty of them since 1992, including the United Kingdom, which is home to one of the world’s most significant art markets.

The Copyright Office has concluded that certain visual artists may operate at a disadvantage under the copyright law relative to authors of other types of creative works. Contrary to its 1992 report, the Office is supportive of further congressional exploration of a resale royalty at this time. It also supports exploration of alternative or complementary options that may take into account the broader context of art industry norms and art market practices, for example, voluntary initiatives or best practices for transactions and financial provisions involving artworks. The report reflects the diversity of public comments received by the Office over the past year, and makes a number of observations and recommendations that Congress may wish to consider in its deliberations.

The full report is available at http://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf




Anne Collins Goodyear, president of CAA’s Board of Directors, and Linda Downs, the organization’s executive director, signed the following letter. You may wish to view a list of programs that have been eliminated by the government that have been supported by Title VIII: http://aseees.org/new/title8-alert.php.

Letter Urging Secretary John Kerry to Restore Funding for Title VIII

December 11, 2013
The Honorable John Kerry
Secretary of State
United States Department of State
2201 C Street NW
Washington, DC 20520

Dear Secretary Kerry:

The undersigned individuals and organizations share with the Department of State the fundamental goal of creating a peaceful, secure, and prosperous global future. To achieve such an end in an increasingly complex world, the U.S. needs accurate analyses by well-trained specialists both in and outside the government.

For the region of Russia, Eastern Europe, and Central Asia, the Department of State has for thirty years trained future leaders and scholars through the Research and Training for Eastern Europe and the New Independent States of the Former Soviet Union Act (PL 90-164, Title VIII). Title VIII has played a significant part in the education of many prominent American policymakers and specialists in the region, including former Secretaries of State Madeleine Albright and Condoleezza Rice, and US Ambassador to Russia Michael McFaul. We are writing to you today to urge you to restore funding for the Title VIII program and to include funding for the Title VIII program as part of your fiscal year 2015 budget request.

Title VIII programs in fiscal year 2012 were administered by the Bureau of Intelligence and Research and supported by the Department of State at a level of $3.5 million. Despite its low cost, Title VIII is a program that continues to have a significant impact on the analytic and diplomatic capacities of the Department of State and on the research base in the academic sector.

At stake are programs that support policy-relevant research, advanced language training, and a specialized information clearing house and reference service related to countries in Central Asia and the Caucasus, Russia and Eastern Europe. A remarkably high percentage of US university faculty who teach about Eastern Europe and Eurasia, State Department specialists on the region, and think tank analysts who advise policymakers have conducted their field work and research and obtained advanced language proficiency thanks to programs funded by Title VIII.

Although the Department of State solicited applications for a fiscal year 2013 Title VIII program, the Department in September announced the cancellation of the program for fiscal year 2013 because it did not receive appropriations. We believe the discontinuation of this program is short-sighted and not in the national and public interest. We urge you to use existing authority to continue to fund this program under the administration of the Bureau of Intelligence and Research at least at the current funding level of $3.5 million for fiscal years 2013 and 2014. We also ask that you include at least that level of funding within the fiscal year 2015 budget request for the Title VIII program.

Title VIII is a small but impactful program that has directly supported several generations of policymakers, diplomats and scholars and indirectly supported their thousands of students and the people who depend on their analyses to make the right business, humanitarian, and foreign policy decisions about a crucial region of the world.

We respectfully draw your attention to this issue and strongly urge that the Department of State immediately take steps to restore funding for the Title VIII program.

Sincerely,

Diane P. Koenker
President, Association for Slavic, East European, and Eurasian Studies
Professor of History, University of Illinois, Urbana-Champaign

Stephen E. Hanson
Vice President, Association for Slavic, East European, and Eurasian Studies
Vice Provost for International Affairs, College of William and Mary

Lynda Park
Executive Director, Association for Slavic, East European, and Eurasian Studies

Ambassador John Beyrle (Ret.)
Former U.S. Ambassador to Russia and Bulgaria

Ambassador James F. Collins (Ret.)
Former U.S. Ambassador to Russia

Ambassador Jack Matlock (Ret.)
Former U.S. Ambassador to the Soviet Union

Ambassador Richard Miles (Ret.)
Former U.S. Ambassador to Azerbaijan, Bulgaria, and Georgia

Ambassador Thomas W. Simons, Jr. (Ret.)
Former U.S. Ambassador to Poland

Mary Thompson-Jones
Senior Foreign Service Officer (Ret.)

Michael M. Crow
President, Arizona State University

Robert A. Easter
President, University of Illinois, Urbana-Champaign

Michael McCarry
Executive Director, Alliance for International Educational and Cultural Exchange

John R. Fitzmier
Executive Director, American Academy of Religion

Edward Liebow
Executive Director, American Anthropological Association

Thomas Seifrid
President, American Association of Teachers of Slavic and East European Languages

Vitaly Chernetsky
President, American Association for Ukrainian Studies

Alexander J. Beecroft
Secretary-Treasurer, American Comparative Literature Association

Pauline Yu
President, American Council of Learned Societies

Dan Davidson
President, American Councils for International Education: ACTR/ACCELS

James Grossman
Executive Director, American Historical Association

Jonathan Rodgers
Secretary-Treasurer, American Oriental Society

Steven Rathgeb Smith
Executive Director, American Political Science Association

Douglas Richardson
Executive Director, Association for American Geographers

Cynthia Werner
President, Central Eurasian Studies Society

Anne Collins Goodyear
President, College Art Association

Linda Downs
Executive Director, College Art Association

David A. Berry
Executive Director, Community College Humanities Association

Melissa Feinberg
President, Czechoslovak Studies Association

Emese Ivan
President, Hungarian Studies Association

Ambassador W. Robert Pearson (Ret.)
President, IREX

William P. Rivers
Executive Director, Joint National Committee for Language-National Council on Language and International Studies; Chair, ASTM F43 Committee on Language Services and Products

Amy W. Newhall
Executive Director, Middle East Studies Association

David P. Patton
President, National Council for Eurasian and East European Research

Stephen Kidd
Executive Director, National Humanities Alliance

Ira Katznelson
President, Social Science Research Council

Pauline Saliga
Executive Director, Society of Architectural Historians

Kevork B. Bardakjian
President, Society for Armenian Studies

James Castonguay
Treasurer, Society for Cinema and Media Studies

Irina Livezeanu
President, Society for Romanian Studies

Olga M. Mladenova
President, South East European Studies Association

Laura Adams
Director of the Program on Central Asia and Caucasus, Harvard University

Stephen K. Batalden
Director, Melikian Center: Russian, Eurasian, & East European Studies, Arizona State University

David Cooper
Director of the Russian, East European, and Eurasian Center, University of Illinois, Urbana-Champaign

Victor Friedman
Director, Center for East European, Russian, and Eurasian Studies, University of Chicago

Robert M. Hayden
Director, Russian & East European Studies, University of Pittsburgh

Yoshiko M. Herrera
Director, Center for Russia, East Europe and Central Asia, and Co-Director, International Institute, University of Wisconsin-Madison

Gail Kligman
Director, Center for European and Eurasian Studies, UCLA

Terry Martin
Director, Davis Center for Russian and Eurasian Studies, Harvard University

Scott Radnitz
Director, Ellison Center for Russian, East European, and Central Asian Studies, University of Washington

Also Signed are ASEEES Board and Past Presidents

Mark R. Beissinger, Princeton University

Marianna Tax Choldin, University of Illinois at Urbana-Champaign

Katerina Clark, Yale University

Megan Dixon, College of Idaho

Zsuzsa Gille, University of Illinois, Urbana-Champaign

Bruce Grant, New York University

Beth Holmgren, Duke University

Adeeb Khalid, Carleton College

Judith Deutsch Kornblatt, University of Wisconsin

Gail Lapidus, Stanford University

Susan Linz, Michigan State University

Harriet L. Murav, University of Illinois, Urbana-Champaign

Mieke Meurs, American University

Norman Naimark, Stanford University

Joan Neuberger, University of Texas at Austin

Janice T. Pilch, Rutgers University Libraries

David L. Ransel, Indiana University

Irina Reyfman, Columbia University

Douglas Rogers, Yale University

William Rosenberg, University of Michigan

Jane Sharp, Rutgers, The State University of New Jersey

Olga Shevchenko, Williams College

Valeria Sobol, University of Illinois, Urbana-Champaign

Ronald Suny, University of Michigan

William Taubman, Amherst College

Katherine Verdery, CUNY Graduate Center

Mark L. von Hagen, Arizona State University

Leslie Waters, College of William and Mary

Robert Weinberg, Swarthmore College

cc: Ambassador William Burns, Deputy Secretary of State, Office of the Deputy Secretary Daniel Rubinstein, Acting Assistant Secretary for Bureau of Intelligence and Research (INR) Ambassador Victoria Nuland, Assistant Secretary for Bureau of European and Eurasian Affairs

(EUR/FO)




Representative Jerrold Nadler (D, NY) announced on Monday, November 22, 2013 his intent to introduce a revised Equity for Artists bill early in 2014. He and Senator Edward J. Markey (R-Mass) who will co-sponsor the bill finished a draft on Monday and support has already been committed by Senator Tammy Baldwin (D, Wis). The bill is similar to HR 3688 introduced last year and not acted upon by the Judiciary Committee. This bill maintains the 5% of the sales price for works auction for prices at $5,000 and above for living artists and those deceased plus 70 years, which follows the copyright law. The motivation for the bill is to ensure that artists do not lose out on any increase in value for future sales and provides reciprocity with the 70 countries that already have adopted similar legislation. The new bill eliminates the portion allocated in the first bill to art museums for new acquisitions. The AAMD requested that this clause be eliminated. Only those sales through auction houses are included in the bill. Nadler indicated that galleries were not included at this time in order to provide greater opportunity to get the bill passed.

Nadler spoke on Monday as part of a five-person panel sponsored by the International Foundation for Art Research (IFAR) at Scandinavia House. In addition to Nadler the panel included Philippa S. Loengard, Assistant Director and Lecturer in Law, Kernochan Center, Columbia Law School; Karyn Temple Claggett, Associate Register of Copyrights; Director of Policy and International Affairs, U.S. Copyright Office; Theodore H. Feder, Ph.D., Founder and President, Artists Rights Society (ARS); and Sandra L. Cobden, General Counsel, Dispute Resolution and Legal Public Affairs, Christie’s. Loengard provided the historical context of artists’ resale royalty rights from the 1920s in France and the 2006 updated legislation of the European Union to the most recent legal action in the U.S. regarding the California resale royalty law originally instituted in 1976 and ruled unconstitutional by California Judge Nguyen. This case is currently on appeal brought by Chuck Close and other artists in the 9th U.S. Circuit Court and is expected to be decided early in 2014 http://clancco.com/wp/2012/05/art-law-droit-de-suite/.

At the request of Congressman Nadler the U.S. Copyright Office undertook an extensive study and analysis of the status of artists in regard to copyright and in relation to other artists such as writers, actors, screen writers and musicians who receive residuals for their work and whether artists are fully exploiting their rights within the current copyright law. The Copyright Office will issue their findings on or before December 12th. The issues they addressed were 1) financial—are visual artists benefiting within the allowance of the copyright law; 2) morality issues—are visual artists benefiting as well as other artists; 3) fairness—would this benefit a large number of professional artists, is the proposed amount reasonable and are the administrative aspects a burden; 4) limitations—what regulations or limitations should be put in place considering that the art market is generally unregulated. The Copyright Office requested formal comments in March and 59 individuals and organizations sent formal comments. On April 23, 2013 the Copyright Office held a hearing in which among other organizations, CAA made its case for the artists resale royalty represented by Anne Collins Goodyear, President. The Copyright Office also reviewed all the government studies on the effectiveness of the European Union system of resale royalties.

While many of the specifics of the Copyright Office could not be presented until it is published in December the following general observations were shared by Claggett: 1) Of all the world art markets, only China and the U.S. (the two largest art markets) do not have resale rights programs; 2) government studies indicate that these programs have no negative impact on the art market; 3) it is difficult to grasp how artists are hindered by current law and practice and the Copyright Office questions whether the resale royalty law is the best solution; 4) opposing parties are using the same statistical information to “prove” opposing perspectives on the legislation. The Copyright office staff refers to this as the “Rorschach Test.” Claggett stated that given the different perspectives on this issue that the Copyright Office report will not make any of the interested parties happy.

Ted Feder from ARS pointed out that this is only visual artists who currently do not get royalties and cited the current rates that Christie’s “taxes” buyers, from 20% to 25% and sellers from 1% to 10% depending on the price of the art work. He believes that the small percentage increase in sales required by the resale royalty legislation would be negligible to Christie’s clientele.

Sandra Cobden from Christie’s stated that while the auction house supports the rights and interests of artists it believes that the proposed resale royalty legislation is a “broken model.” She cited the study commissioned by Christie’s of the impact of the EU art market after the latest 2006 legislation where the art market in the EU grew 32% while that in the US grew 120% and China’s grew 121% in the same period. This was countered by Nadler who  indicated that the EU at that time was in a general economic slump. She also suggested that this legislation is unconstitutional since it would only require auction houses and no galleries or ecommerce sites to institute this system. Her solution is to abandon this legislation and amend the tax laws so that artists may deduct the sales price when donating works to art museums and non-profit institutions.

Watch

Art for Sale? Bankruptcy and the Detroit Institute of Arts from Sharon Flescher on Vimeo.




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