On Friday the U.S. Copyright Office published a notice of a public hearing to consider issues relating to a possible federal resale royalty right. The hearing will address what effect such a right would have on the primary art market, whether it would incentivize artists to create new works, and how retroactive legislation might be barred under the Due Process Clause of the U.S. Constitution. Of note in light of the U.S. Supreme Court’s Kirtsaeng opinion, the hearing will address whether a resale royalty right would be inconsistent with the first sale doctrine under section 109(a) of the Copyright Act. IPO’s Copyright Law and Practice Committee will be studying the notice.
