Equity for Visual Artists Act of 2011 - Requires, whenever a work of visual art is sold for at least $10,000 at an auction by someone other than the authoring artist, that the entity collecting the money or other consideration pay a royalty equal to 7% of the price to a visual artists' collecting society.
Defines an "auction" as public sale run by an entity that: (1) sells to the highest bidder works of visual art in which the cumulative amount of such works sold during the previous year is over $25 million, and (2) does not solely conduct the sale of such visual art on the Internet.
Requires the collecting society to: (1) distribute half of the net royalty to the artist or their successor as copyright owner, and (2) deposit the other half into an escrow account to fund purchases by U.S. nonprofit art museums of works of visual art authored by living artists domiciled in the United States.
Establishes a copyright infringement offense for the failure of the entity collecting the money or other consideration to pay such a royalty. Subjects an infringer to the payment of statutory damages.
Excludes works of visual art from copyright notice procedures.
Directs the Register of Copyrights to issue regulations governing the designation and oversight of visual artists' collecting societies.
Requires that specified fees be paid to the Register out of the total royalty payments received by collecting societies.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2000 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 2000
To amend the copyright law to secure the rights of artists of works of
visual art to provide for royalties, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 15, 2011
Mr. Kohl introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the copyright law to secure the rights of artists of works of
visual art to provide for royalties, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equity for Visual Artists Act of
2011''.
SEC. 2. DEFINITIONS.
Section 101 of title 17, United States Code, is amended by--
(1) inserting after the definition of ``architectural
work'' the following:
``For purposes of section 106(b), `auction' means a public sale
run by an entity that sells to the highest bidder works of
visual art in which the cumulative amount of such works sold
during the previous year is more than $25,000,000 and does not
solely conduct the sale of visual art by the entity on the
Internet.'';
(2) inserting after the definition of ``proprietor'' and
prior to the definition of ``pseudonymous work'' the following:
``For purposes of section 106(b), `price' is the aggregate of
all installments paid in cash or in-kind by or on behalf of a
purchaser for a work as the result of auction of that work.'';
(3) inserting at the end of the definition of
``Publication'' the following: ``For purposes of section
106(b), in the case of a work of visual art as defined in this
section, a publication does not include photographic
reproductions or other images of the work, including castings
of a sculptural work, made or distributed prior to January 1,
1978, in connection with the exhibition of such work by a
gallery or museum, whether for purposes of sale of the original
work, or in connection with any publication authorized by a
gallery or museum in possession of the work regardless of
whether such publication was with the consent of the author. In
no other circumstances is a work of visual art considered to
have been published prior to January 1, 1978, unless such
publication has been authorized by the express written consent
of the author of such work.'';
(4) inserting after the definition of ``registration'' and
prior to the definition of ``sound recordings'' the following:
``For purposes of sections 106(b) and 701(b)(5), `sale' means
transfer of ownership or physical possession of a work as the
result of the auction of that work.''; and
(5) amending paragraph (1) of the definition of a ``work of
visual art'' to read as follows:
``(1) a painting, drawing, print, sculpture, or photograph,
existing either in the original embodiment or in a limited
edition of 200 copies or fewer that bear the signature or other
identifying mark of the author and are consecutively numbered
by the author, or, in the case of a sculpture in multiple cast,
carved, or fabricated sculptures of 200 or fewer that are
consecutively numbered by the author and bear the signature or
other identifying mark of the author; or''.
SEC. 3. EXCLUSIVE RIGHTS.
Section 106 of title 17, United States Code, is amended by--
(1) inserting ``(a)'' before ``Subject to sections 107
through 122''; and
(2) adding at the end the following:
``(b)(1) In this subsection, the term `net royalty' means the
royalty amount collected less administrative expenses of the visual
artists' collecting society. In no case shall the administrative
expenses of the visual artists' collecting society subtracted from the
royalty amount collected exceed 18 percent.
``(2) Whenever a work of visual art is sold as the result of
auction of that work by someone other than the artist who is the author
of the work, the entity that collects the money or other consideration
paid for the sale of the work shall, within 90 days of collecting such
money or other consideration, pay out of the proceeds of the sale a
royalty equal to 7 percent of the price. Such royalty shall be paid to
a visual artists' collecting society. The collecting society shall
distribute, no fewer than 4 times per year, 50 percent of the net
royalty to the artist or his or her successor as copyright owner. After
payment to the artist or his or her successor as copyright owner, the
remaining 50 percent of the net royalty shall be deposited into an
escrow account established by the collecting society for the purposes
of funding purchases by nonprofit art museums in the United States of
works of visual art authored by living artists domiciled in the United
States. The right to receive such royalty and the obligation to deposit
the remaining share of sale proceeds into the escrow account provided
in this subsection may not be waived by the artist or his successor as
copyright owner. Failure of the entity collecting the money or other
consideration resulting from the sale of the work to pay the royalty
provided under this section shall constitute an infringement of
copyright. Any such infringement shall be subject to the payment of
statutory damages under section 504.
``(3) Paragraph (2) shall not apply to the sale of a work for a
gross sales price of less than $10,000, or in exchange for property
with a fair market value of less than $10,000.''.
SEC. 4. NOTICE OF COPYRIGHT.
Section 401 of title 17, United States Code, is amended by adding
at the end the following:
``(e) Non Applicability to Works of Visual Art.--The provisions of
this section shall not apply to a work of visual art.''.
SEC. 5. COPYRIGHT OFFICE.
Section 701(b) of title 17, United States Code, is amended by--
(1) redesignating paragraph (5) as paragraph (6); and
(2) inserting after paragraph (4) the following:
``(5) Issue regulations governing visual artists'
collecting societies pursuant to section 106(b), which shall,
at a minimum--
``(A) establish a process by which entities would
be determined to be and designated as visual artists'
collecting societies;
``(B) require that a visual artists' collecting
society authorized to administer royalty collections
and distributions under this title shall have had prior
experience in licensing the copyrights of authors of
works of visual art in the United States, or have been
authorized by no fewer than 10,000 authors of works of
visual art, either directly or by virtue of reciprocal
agreements with foreign collecting societies, to
license the rights granted under section 106;
``(C) exclude any entity from being considered a
visual artists' collecting society where, after having
been designated a visual artists' collecting society,
the royalties collected for at least 5 consecutive
years have not been distributed directly to authors
after deduction of administrative expenses;
``(D) establish the methodology and procedures
pursuant to which visual artists' collecting societies
shall make grants to nonprofit museums for the purchase
of works with the escrow funds provided in this
section, after notice and opportunity to comment,
including--
``(i) the criteria to be used by the visual
artists' collecting societies for application
by nonprofit art museums for the purchase of
works out of the funds held in escrow for that
purpose by such societies;
``(ii) the amount of the maximum grant for
the purchase of an individual work of visual
art;
``(iii) the maximum amount that may be
granted to a nonprofit museum; and
``(iv) criteria for the award of grants
when the amounts requested exceed the total
amount of funds held in escrow;
``(E) require that each such society provide the
Register of Copyrights with an annual audit of royalty
funds collected under section 106(b)(1) that includes
the total amount received from the sales of works of
visual art, the total amount paid in distributions to
artists or, if deceased, to their successors as owners
of copyright, and the total amount paid in grants to
each nonprofit museum for the purchase of works of
visual art; and
``(F) make publicly available an annual report to
the Congress setting forth the total amount of
royalties received by each visual artists' collecting
society and the amount disbursed to each nonprofit art
museum receiving a grant or grants from the escrow
funds established by each visual artists' collecting
society.
Except as necessary for the report to Congress required
pursuant to subparagraph (F), the Register of Copyrights shall
not disclose any confidential or proprietary information
provided to it in the annual audits made available pursuant to
this section.''.
SEC. 6. COPYRIGHT OFFICE FEES.
Section 708(a) of title 17, United States Code, is amended--
(1) by redesignating paragraphs (10) and (11) as paragraphs
(11) and (12), respectively;
(2) by inserting after paragraph (9) the following:
``(10) for expenses associated with carrying out its
responsibilities under section 701(b)(5), provided that such
fees shall be paid out of the total royalty payments received
by collecting societies pursuant to section 106(b), before
deduction of such societies' administrative expenses; and
provided further, that following the initial rulemaking
necessary to carry out its obligations under section 701(b)(5),
such fees shall not exceed 5 percent of the total annual amount
of royalties received by such collecting societies;''; and
(3) in the matter following paragraph (12), as so
redesignated, in the second sentence, by striking ``(10) and
(11)'' and inserting ``(11) and (12)''.
SEC. 7. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on
the date that is 1 year after the date of enactment of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S8681)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S8681-8682)
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