ORDER GRANTING JOINT MOTION TO DISMISS
This matter comes before the Court on Defendants Sotheby’s, Inc. (“Sotheby’s”) and Christie’s, Inc.’s (“Christie’s”) (collectively, “Defendants”) Joint Motion to Dismiss (“Jt. Mot.”). (2:1 l-cv-8604-JHNFFM, docket no. 17.)
For the reasons herein, the Joint Motion is GRANTED with prejudice.
I.
BACKGROUND
Defendants are world-renowned auction houses. Sotheby’s is a New York corporation, with its principal place of business in New York. (Sotheby’s Compl. ¶ 5; Jt. Mot. 10.) Christie’s is also a New York corporation, with its principal place of business in New York. (Christie’s Compl. ¶ 6; Jt. Mot. 10.)
On October 18, 2011, Plaintiffs — a collection of artists and their heirs — brought the instant Class Action Complaints (the “Complaints”), alleging that Defendants failed to comply with the California Resale Royalties Act (“CRRA”), Cal. Civ.Code § 986. Specifically, Plaintiffs allege, inter alia, that Defendants — acting as the agents for California sellers — sold works of fine art at auction but failed to pay the appropriate resale royalty provided for under the CRRA. (Sotheby’s Compl. ¶¶ 9-12.)
On January 12, 2012, Defendants filed a Joint Motion to Dismiss the Complaints, arguing that the Court should strike down the CRRA because it (1) violates the Commerce Clause of the United States Constitution; (2) effects a taking of private property in violation of the United States and California constitutions; and (3) is preempted by the Copyright Act of 1976. (Jt. Mot.7, 17, 24.) Because the Court finds that the CRRA “cannot withstand Commerce Clause scrutiny,” Nat’l Collegiate Athletic Ass’n v. Miller,
LEGAL STANDARD
A defendant may seek dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). In evaluating a motion to dismiss, the Court generally cannot consider material outside the complaint, such as facts presented in briefs, affidavits, hr discovery materials, unless such material is alleged in the complaint or judicially noticed. McCalip v. De Legarret, No. 08-2250,
III.
DISCUSSION
Defendants argue that by purporting to regulate transactions that take place wholly outside of California, the CRRA violates the Commerce Clause of the United States Constitution. (Jt. Mot.7); U.S. Const, art. I, § 8, cl. 3. The Court conducts its analysis mindful of the “time-honored presumption” that “[ejvery legislative act is to be presumed to be a constitutional exercise of legislative power until the contrary is clearly established.” Reno v. Condon,
A. The CRRA
The CRRA provides for a droit de suite, or resale royalty right, for fine artists. Cal. Civ.Code § 986. The droit de suite creates a “continuing remunerative relationship between a visual artist and his creation,” by providing the artist with a right to a royalty payment — consisting of a percentage of an original work’s resale price — each time the “original, tangible embodiment” of the artist’s work is resold. Elliot Alderman, Resale Royalties in the United States for Fine Visual Artists: An Alien Concept, 40 J. Copyright Soc’y U.S.A. 265, 267 (1992); 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8C.04[A][1] (2011) [hereinafter “Nimmer”].
The CRRA provides that “[w]henever a work of fíne art is sold and the seller resides in California or the sale takes place in California, the seller or the seller’s agent shall pay to the artist of such work of fine art or to such artist’s agent 5 percent of the amount of such sale.” Cal. Civ.Code § 986(a). An artist can waive the right to this royalty “only by a contract in writing providing for an amount in ex
The CRRA defines a work of “[f]ine art” as “an original painting, sculpture, or drawing, or an original work of art in glass.” Id. § 986(c)(2). An “[ajrtist” is defined as “the person who creates a work of fine art and who, at the time of resale, is a citizen of the United States, or a resident of the state who has resided in the state for a minimum of two years.” Id. § 986(c)(1). Therefore, the CRRA applies to all artists who are U.S. citizens, regardless of the state in which they reside. Here, for example, Plaintiff Chuck Close resides in New York. (Sotheby’s Compl. ¶ 3; Christie’s Compl. ¶ 4.)
The CRRA additionally requires the seller’s agent to effect payment of the resale royalty. Cal. Civ.Code § 986(a)(1). Specifically, the CRRA provides that “[wjhen a work of fine art is sold at an auction or by a gallery, dealer, broker, museum or other person acting as the agent for the seller the agent shall withhold 5 percent of the amount of the sale, locate the artist and pay the artist.” Id.
If the agent is unable to locate the artist within 90 days, the agent must pay the applicable royalty to the California Arts Council, which is then required to search for the artist for seven years. After that time, if the artist is not located, the funds pass to the California Arts Council for “use in acquiring fine art.” Id. §§ 986(a)(3), (a)(5). If the seller or the seller’s agent fails to pay the appropriate royalty, “the artist may bring an action for damages within three years after the date of sale or one year after the discovery of the sale, whichever is longer.” Id. § 986(a)(3). The heirs of a deceased artist may assert the artist’s rights under the CRRA for 20 years after the artist’s death. Id. § 986(a)(7). The CRRA excludes any resale for “a gross sales price of less than one thousand dollars ($1,000)” or “a gross sales price less than the purchase price paid by the seller.” Id. § 986(b)(2), (b)(4).
Although such legislation is common among European nations, including France, Germany and the United Kingdom, California’s passage of the CRRA in 1976 represented the first droit de suite legislation in the United States. See, e.g., William Bates, Royalties for Artists: California Becomes The Testing Ground, N.Y. Times, August 14, 1977; Alderman at 268-69; Nimmer, § 8C.04[A][lj; The Artist’s Resale Right Regulations 2006, 2006 No. 346, available at http://www.legislation.gov. uk/uksi/2006/346/eontents/made (last viewed, May 16, 2012); see also Judicial Improvements Act of 1990, Pub. L. No. 101-650, § 608(b), 104 Stat. 5089 (1990).
Notably, several attempts by Congress to introduce resale royalty legislation have failed. Reddy at 511; see also U.S. Copyright Office, Droit de Suite: The Artist’s Resale Royalty (1992) [hereinafter “Report”]. In December 1992, the Copyright Office issued a report concluding that it was “not persuaded that sufficient economic and copyright policy justification exists to establish droit de suite in the United States.” Report at 149; see also Nimmer at § 8C-13. Other states, including New York, have considered similar legislation, but have not adopted any measure creating a resale royalty right for visual artists. (See, e.g., Russell Deck, Ex. 23, at 693-716.)
The Commerce Clause of the United States Constitution states: “The Congress shall have Power ... To regulate Commerce ... among the several States ...” U.S. Const, art. I, § 8, cl. 3. “Although the Commerce Clause is phrased as an affirmative grant of regulatory power to Congress, the Supreme Court ... has long interpreted the Clause to have a ‘negative aspect,’ referred to as the dormant Commerce Clause.... ” Conservation Force, Inc. v. Manning,
C. Applicability of the Dormant Commerce Clause
As an initial matter, although Plaintiffs -rely heavily upon the Ninth Circuit’s decision in Morseburg v. Balyon,
A state statute implicates the dormant Commerce Clause if the activity it regulates could likewise be regulated by Congress. Manning,
1. Works of Fine Art Constitute “Things” in Interstate Commerce
First, the Court finds that where works of fine art are sold from one state into another, each piece of fine art itself constitutes a “thing” in interstate commerce. Therefore, Congress may regulate such transactions under the Commerce Clause. See Lopez,
2. The CRRA Substantially Affects Interstate Commerce
Second, the Court finds that the CRRA substantially affects interstate commerce. One factor that a Court should “consider when evaluating whether a law has a ‘substantial effect’ on interstate commerce [is] ... whether the statute has anything to do with ‘commerce or any sort of economic enterprise, however broadly one might define those terms.’ ” San Luis & DeltaMendota Water Auth. v. Salazar,
The Supreme Court has held that Congress may exercise its Commerce Clause power so long as “in the aggregate the economic activity in question would represent a general practice ... subject to federal control.” Citizens Bank v. Alafabco, Inc.,
D. Whether the CRRA Violates the Dormant Commerce Clause
Although the Court has concluded that the CRRA implicates the dormant Commerce Clause, this “does not answer the question of whether the [CRRA] violates the dormant Commerce Clause.” Manning,
The Supreme Court has “outlined a two-tiered approach” to analyzing state economic regulations under the dormant Commerce Clause:
When a statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry. When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, we have examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.
Valley Bank of Nev. v. Plus Sys., Inc.,
1. The CRRA Violates the Commerce Clause Per Se
The Supreme Court has held that “a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature.” Healy v. Beer Institute, Inc.,
The Court finds that the CRRA explicitly regulates applicable sales of fine art occurring wholly outside California. See Cal. Civ.Code § 986(a). Under its clear terms, the CRRA regulates transactions occurring anywhere in the United States, so long as the seller resides in California. Id. Even the artist — the intended beneficiary of the CRRA — does not have to be a citizen of, or reside in, California. Cal. Civ.Code § 986(c)(1).
The following example illustrates the CRRA’s problematic reach: Assume a California resident places a painting by a New York artist up for auction at Sotheby’s in New York, and at the auction a New York resident purchases the painting for $1,000,000. In such a situation, the transaction that the CRRA regulates — the one between the New York auction house and the New York purchaser
California’s own Legislative Counsel recognized this problem with the CRRA when the law was being considered in August of 1976. (Russell Decl. Ex. 5, at 32.)
Plaintiffs’ reliance on S.D. Myers is misplaced. (Opp’n to Jt. Mot. at 12.) In S.D. Myers, the Ninth Circuit confronted a wholly different set of facts. There, a San Francisco ordinance required that “contractors with the City provide nondiscriminatory benefits to employees with registered domestic partners.”
Here, on the other hand, the Complaints contain no allegation that Defendants affirmatively chose to be governed by Califor-
nia law. Instead, Defendants, both New York corporations, find themselves subject to the law of California by virtue of selling art that is owned by a California seller— even if the transaction takes place wholly in New York, and even if the beneficiary of the 5% royalty is a New York artist. Cal. Civ.Code § 986(c)(1).
For these reasons, the Court finds that the CRRA has the “practical effect” of controlling commerce “occurring wholly outside the boundaries” of California even though it may have some “effects within the State.” Healy,
E. The Entire Statute Must Fall
Although the CRRA contains a severability provision, the Court nonetheless agrees with Defendants that the offending portions of the CRRA cannot be severed, and thus the entire statute must fall. Cal Civ.Code § 986(e) (“If any provision of this section or the application thereof to any person or circumstance is held invalid for any reason, such invalidity shall not affect any other provisions or applications of. this section which can be effected, without the invalid provision or application, and to this end the provisions of this section are severable.”); (Jt. Reply 12).
The legislative history of the CRRA, debated as Assembly Bill 1391, reveals that the legislature abandoned the initial version of the CRRA that purported to regulate only sales that took place in California. (See Russell Decl. Ex. 1.)
Assembly Bill 1391, as introduced on April 2, 1975, provided for a resale royalty only where “an original work of fine art [was] sold at an auction or by a gallery or museum in California.” (Russell Decl. Ex. 1, at 8) (emphasis added). The bill was then amended, to ensure the CRRA applied “[w]henever a work of fine art [was] sold and the buyer or the seller resides in California or the sale takes place in California.” (Russell Decl. Ex. 4, at 22) (emphasis in original). The bill was then amended again, deleting the reference to California buyers, but continuing to require a resale royalty for sales outside of California where the “seller resides in California.” (Russell Decl. Ex. 6, at 34.) After the initial introduction of the bill, all amended versions were consistent in one respect: they applied to sales taking place outside California so long as the seller resided in California.
Moreover, the legislature endorsed the CRRA’s extraterritorial reach, despite the fact that California’s Legislative Counsel advised both Assemblyman Sieroty and then-Governor Brown, in opinion letters, that the bill “would constitute an undue burden on interstate commerce in contravention of the Federal Constitution in its application to sales which occur outside the State of California.” (Id. Ex. 5, at 26; Ex. 7, at 42.) As Defendants pointed out in oral argument, the reason for the legislature’s decision seems obvious: were the CRRA to apply only to sales occurring in California, the art market would surely have fled the state to avoid paying the 5% royalty. (Docket no. 39 at 21:10-17.)
For these reasons, the Court finds that the California legislature “would not have enacted” the CRRA without its extraterritorial reach. Buckley,
Therefore, the Court finds that the CRRA must fall in its entirety.
IY.
CONCLUSION
For the foregoing reasons, the Court finds that the California Resale Royalties Act, Cal. Civ.Code § 986, violates the Commerce Clause of the United States Constitution. Because the Court finds that the offending provisions cannot be severed, the entire statute is struck down. Therefore, Defendants’ Joint Motion to Dismiss the Complaints (docket no. 17) is
IT IS SO ORDERED.
Notes
. All citations to the docket in this opinion are to the 2:1 l-cv-8604-JHN-FFM docket, unless otherwise stated.
. The droit de suite is best understood as an “attempt to equalize the copyright status of fine artists” with that of authors and composers. Nimmer, § 8C.04[A][1], For while authors and composers are compensated each time their works are performed or reproduced, visual artists “create one-of-a-kind objects, which cannot be copied,” and thus receive their income from a work almost solely from its initial sale. Michael B. Reddy, The Droit de Suite: Why American Fine Artists Should Have a Right to a Resale Royalty, 15 Loy. L.A. Ent L. Rev. 509, 517 (1995).
. According to commentators and news reports, enforcement of the CRRA has been spotty. The New York Times recently reported that, since the CRRA was passed in 1977, approximately 400 artists have received a total of $328,000 in resale royalties. Patricia Cohen, Artists File Lawsuits, Seeking Royalties, N.Y. Times, Nov. 1, 2011, http://www. nytimes.com/2011/11/02/arts/design/artists
. The Court also notes that its decision in Baby Moose Drawings, Inc. v. Valentine, No. 11-00697,
. Notably, the CRRA does not purport to regulate any potential agreement between a seller and the seller’s agent; rather, it solely regulates the actual sale.
. The Court received Defendants' Request for Judicial Notice (docket no. 18). The Court grants the Request to take judicial notice of the legislative history of the CRRA, including, inter alia, prior versions of the bill, amendments, committee reports, and the written recommendations of the legislative counsel. See, e.g., Territory of Alaska v. Am. Can Co.,
The Court, however, does not rely upon the judicially noticed documents in reaching its conclusions on the constitutionality of the CRRA. It uses them simply for the purpose of adding context to the analysis, and in considering severability. See, e.g., Traverso v. People ex rel. Dep’t of Transp.,
. Plaintiffs' reliance on Gravquick A/S v. Trimble Navigation Int’l Ltd.,