On April 1, 2019, the U.S. Supreme Court denied certiorari in a series of Ninth Circuit cases that found that the California Resale Royalty Act (“CRRA”) was partially preempted by section 301(a) of the 1976 Copyright Act. Under the CRRA, secondary-market sellers of fine art would be required to pay to the artist who created a work a five percent (5%) royalty on each resale of that work. After the Ninth Circuit ruled that the artist-plaintiffs’ claims were barred due to preemption, defendants Sotheby’s and eBay applied for awards of attorney’s fees under the CRRA. The Ninth Circuit held that the fee-shifting provision of the CRRA was not preempted by the Copyright Act and thus that Sotheby’s and eBay were entitled to recover their attorney’s fees.

The plaintiffs appealed this latter ruling. The question presented to the Supreme Court was whether the defendants could recover attorney’s fees under the CRRA despite the Ninth Circuit’s finding that the CRRA was otherwise preempted. As a result of the denial of certiorari, the Ninth Circuit’s ruling that the artist plaintiffs must pay Sotheby’s and eBay’s legal fees stands. As is standard, the justices did not explain why they refused to hear the case.

We previously covered this series of Ninth Circuit cases on this blog here and here.