Artists Appeal California Resale Royalty Act Invalidation

By Irina Tarsis

Artistic and legal minds want to know "Does the California Resale Right Act  (the "Act") violate the Commerce Clause of the United States Constitution, U.S. Const, Art. I, sec. 8, cl.3?" This is but one of the questions on appeal before the 9th Circuit Court of Appeals following the June 6, 2012 district court decision in Estate of Robert Graham v. Sotheby's.

More specifically, the questions posed in the 70-page Appellant's Opening Brief ask "Whether the district court prejudicially erred in holding that the Act impermissibly requires that, when a work of original fine art (as defined in the Act) is sold in California or out of state by a seller who resides in California, the seller or the seller's agent must pay the artist 5% of the sale proceeds," and "Whether the district court prejudicially erred in holding that the entire Act (as opposed to portions or applications of the Act) violates the Commerce Clause, and in refusing to apply an express severance provision set forth in the Act."

Appellants are prepared to argue that in fact the Act is Constitutional under the Commerce Clause because a state may impose levy-collection burden on sellers both domestic and out-of-state so long as the seller has a physical presence or a nexus to the state imposing the levy." Moreover, in their opinion, the Act is Constitutional under the Four-Part Commerce Clause Test established by the Supreme Court precedent.