I 

112TH CONGRESS 

1ST SESSION H. R. 3688 

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 HOUSE OF REPRESENTATIVES 

DECEMBER 15, 2011 

Mr. NADLER introduced the following bill; which was 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Equity for Visual Art5 ists Act of 2011’’. 

6 SEC. 2. DEFINITIONS. 

7 Section 101 of title 17, United States Code, is 

8 amended by— 

9 (1) inserting after the definition of ‘‘architec10 tural work’’ the following: 


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1 ‘‘For purposes of section 106(b), ‘auction’ means a 

2 public sale run by an entity that sells to the highest 

3 bidder works of visual art in which the cumulative 

4 amount of such works sold during the previous year 

5 is more than $25,000,000 and does not solely con6 duct the sale of visual art by the entity on the Inter7 net.’’; 

8 (2) inserting after the definition of ‘‘proprietor’’ 

9 and prior to the definition of ‘‘pseudonymous work’’ 

10 the following: 

11 ‘‘For purposes of section 106(b), ‘price’ is the aggre12 gate of all installments paid in cash or in-kind by or 

13 on behalf of a purchaser for a work as the result of 

14 auction of that work.’’; 

15 (3) inserting at the end of the definition of 

16 ‘‘Publication’’ the following: ‘‘For purposes of sec17 tion 106(b), in the case of a work of visual art as 

18 defined in this section, a publication does not include 

19 photographic reproductions or other images of the 

20 work, including castings of a sculptural work, made 

21 or distributed prior to January 1, 1978, in connec22 tion with the exhibition of such work by a gallery or 

23 museum, whether for purposes of sale of the original 

24 work, or in connection with any publication author25 ized by a gallery or museum in possession of the 


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1 work regardless of whether such publication was 

2 with the consent of the author. In no other cir3 cumstances is a work of visual art considered to 

4 have been published prior to January 1, 1978, un5 less such publication has been authorized by the ex6 press written consent of the author of such work.’’; 

7 (4) inserting after the definition of ‘‘registra8 tion’’ and prior to the definition of ‘‘sound record9 ings’’ the following: 

10 ‘‘For purposes of sections 106(b) and 701(b)(5), 

11 ‘sale’ means transfer of ownership or physical pos12 session of a work as the result of the auction of that 

13 work.’’; and 

14 (5) amending paragraph (1) of the definition of 

15 a ‘‘work of visual art’’ to read as follows: 

16 ‘‘(1) a painting, drawing, print, sculpture, or 

17 photograph, existing either in the original embodi18 ment or in a limited edition of 200 copies or fewer 

19 that bear the signature or other identifying mark of 

20 the author and are consecutively numbered by the 

21 author, or, in the case of a sculpture in multiple 

22 cast, carved, or fabricated sculptures of 200 or fewer 

23 that are consecutively numbered by the author and 

24 bear the signature or other identifying mark of the 

25 author; or’’. 


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1 SEC. 3. EXCLUSIVE RIGHTS. 

2 Section 106 of title 17, United States Code, is 

3 amended by— 

4 (1) inserting ‘‘(a)’’ before ‘‘Subject to sections 

5 107 through 122’’; and 

6 (2) adding at the end the following: 

7 ‘‘(b)(1) In this subsection, the term ‘net royalty’ 

8 means the royalty amount collected less administrative ex9 penses of the visual artists’ collecting society. In no case 

10 shall the administrative expenses of the visual artists’ col11 lecting society subtracted from the royalty amount col12 lected exceed 18 percent. 

13 ‘‘(2) Whenever a work of visual art is sold as the re14 sult of auction of that work by someone other than the 

15 artist who is the author of the work, the entity that col16 lects the money or other consideration paid for the sale 

17 of the work shall, within 90 days of collecting such money 

18 or other consideration, pay out of the proceeds of the sale 

19 a royalty equal to 7 percent of the price. Such royalty shall 

20 be paid to a visual artists’ collecting society. The collecting 

21 society shall distribute, no fewer than 4 times per year, 

22 50 percent of the net royalty to the artist or his or her 

23 successor as copyright owner. After payment to the artist 

24 or his or her successor as copyright owner, the remaining 

25 50 percent of the net royalty shall be deposited into an 

26 escrow account established by the collecting society for the 


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1 purposes of funding purchases by nonprofit art museums 

2 in the United States of works of visual art authored by 

3 living artists domiciled in the United States. The right to 

4 receive such royalty and the obligation to deposit the re5 maining share of sale proceeds into the escrow account 

6 provided in this subsection may not be waived by the artist 

7 or his successor as copyright owner. Failure of the entity 

8 collecting the money or other consideration resulting from 

9 the sale of the work to pay the royalty provided under 

10 this section shall constitute an infringement of copyright. 

11 Any such infringement shall be subject to the payment of 

12 statutory damages under section 504. 

13 ‘‘(3) Paragraph (2) shall not apply to the sale of a 

14 work for a gross sales price of less than $10,000, or in 

15 exchange for property with a fair market value of less than 

16 $10,000.’’. 

17 SEC. 4. NOTICE OF COPYRIGHT. 

18 Section 401 of title 17, United States Code, is 

19 amended by adding at the end the following: 

20 ‘‘(e) NON APPLICABILITY TO WORKS OF VISUAL

21 ART.—The provisions of this section shall not apply to a 

22 work of visual art.’’. 

23 SEC. 5. COPYRIGHT OFFICE. 

24 Section 701(b) of title 17, United States Code, is 

25 amended by— 


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1 (1) redesignating paragraph (5) as paragraph 

2 (6); and 

3 (2) inserting after paragraph (4) the following: 

4 ‘‘(5) Issue regulations governing visual artists’ 

5 collecting societies pursuant to section 106(b), which 

6 shall, at a minimum— 

7 ‘‘(A) establish a process by which entities 

8 would be determined to be and designated as 

9 visual artists’ collecting societies; 

10 ‘‘(B) require that a visual artists’ col11 lecting society authorized to administer royalty 

12 collections and distributions under this title 

13 shall have had prior experience in licensing the 

14 copyrights of authors of works of visual art in 

15 the United States, or have been authorized by 

16 no fewer than 10,000 authors of works of visual 

17 art, either directly or by virtue of reciprocal 

18 agreements with foreign collecting societies, to 

19 license the rights granted under section 106; 

20 ‘‘(C) exclude any entity from being consid21 ered a visual artists’ collecting society where, 

22 after having been designated a visual artists’ 

23 collecting society, the royalties collected for at 

24 least 5 consecutive years have not been distribVerDate Mar 15 2010 02:10 Dec 23, 2011 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.IH H3688

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1 uted directly to authors after deduction of ad2 ministrative expenses; 

3 ‘‘(D) establish the methodology and proce4 dures pursuant to which visual artists’ col5 lecting societies shall make grants to nonprofit 

6 museums for the purchase of works with the es7 crow funds provided in this section, after notice 

8 and opportunity to comment, including— 

9 ‘‘(i) the criteria to be used by the vis10 ual artists’ collecting societies for applica11 tion by nonprofit art museums for the pur12 chase of works out of the funds held in es13 crow for that purpose by such societies; 

14 ‘‘(ii) the amount of the maximum 

15 grant for the purchase of an individual 

16 work of visual art; 

17 ‘‘(iii) the maximum amount that may 

18 be granted to a nonprofit museum; and 

19 ‘‘(iv) criteria for the award of grants 

20 when the amounts requested exceed the 

21 total amount of funds held in escrow; 

22 ‘‘(E) require that each such society provide 

23 the Register of Copyrights with an annual audit 

24 of royalty funds collected under section 

25 106(b)(1) that includes the total amount reVerDate Mar 15 2010 02:10 Dec 23, 2011 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3688.IH H3688

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1 ceived from the sales of works of visual art, the 

2 total amount paid in distributions to artists or, 

3 if deceased, to their successors as owners of 

4 copyright, and the total amount paid in grants 

5 to each nonprofit museum for the purchase of 

6 works of visual art; and 

7 ‘‘(F) make publicly available an annual re8 port to the Congress setting forth the total 

9 amount of royalties received by each visual art10 ists’ collecting society and the amount disbursed 

11 to each nonprofit art museum receiving a grant 

12 or grants from the escrow funds established by 

13 each visual artists’ collecting society. 

14 Except as necessary for the report to Congress re15 quired pursuant to subparagraph (F), the Register 

16 of Copyrights shall not disclose any confidential or 

17 proprietary information provided to it in the annual 

18 audits made available pursuant to this section.’’. 

19 SEC. 6. COPYRIGHT OFFICE FEES. 

20 Section 708(a) of title 17, United States Code, is 

21 amended— 

22 (1) by redesignating paragraphs (10) and (11) 

23 as paragraphs (11) and (12), respectively; 

24 (2) by inserting after paragraph (9) the fol25 lowing: 


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1 ‘‘(10) for expenses associated with carrying out 

2 its responsibilities under section 701(b)(5), provided 

3 that such fees shall be paid out of the total royalty 

4 payments received by collecting societies pursuant to 

5 section 106(b), before deduction of such societies’ 

6 administrative expenses; and provided further, that 

7 following the initial rulemaking necessary to carry 

8 out its obligations under section 701(b)(5), such fees 

9 shall not exceed 5 percent of the total annual 

10 amount of royalties received by such collecting soci11 eties;’’; and 

12 (3) in the matter following paragraph (12), as 

13 so redesignated, in the second sentence, by striking 

14 ‘‘(10) and (11)’’ and inserting ‘‘(11) and (12)’’. 

15 SEC. 7. EFFECTIVE DATE. 

16 This Act and the amendments made by this Act shall 

17 take effect on the date that is 1 year after the date of 

18 enactment of this Act. 

Æ 


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