The New Copyright Small Claims Bill: A Ray of Hope for Independent Photographers

By Adelaide Dunn*

screen-shot-2016-10-18-at-4-11-35-amThe U.S. Copyright Act’s single regulatory system fails to accommodate the diversity of production methods, output speeds and business models of today’s creative entrepreneurs. In the eyes of independent and freelance artists, one of copyright’s greatest flaws is its requirement that an infringement claim be litigated in a federal court – an endeavor accruing costs that often far surpass the value of the work at issue. Since 2006, the United States Copyright Office has been questioning creators, holding panel discussions and conducting research pertaining to a new model for resolving small claims. The Copyright Alternative in Small-Claims Enforcement Act of 2016 (“CASE Bill”), introduced in July this year, would create a new Copyright Small Claims Board (“Board”) facilitating the resolution of claims valued below $30,000 in actual damages. The aim is to overcome two of the most common criticisms of copyright law: that its systems favor large corporations over independent and freelance creators, and that it is an abstract set of rules that the general public chooses to ignore. The CASE Bill sketches out an ambitious yet promising new system that has the potential to facilitate settlements, dissuade infringing activity (particularly online), and ensure remedies for copyright infringement are available to low-income creators.

The proposed Board is a streamlined, inexpensive, Internet-based dispute resolution system to be administered by the Copyright Office. Three Officers are to act as adjudicators – two having had significant experience representing or presiding over a diversity of copyright interests, and the third having expertise in alternative dispute resolution. Decisions are primarily made on the papers filed with the administration. Hearings or discussions towards settlement can take place over teleconferencing facilities where needed. The system is designed without the need for attorneys, such that rules of procedure are relaxed, discovery is minimal, and costs are only awarded for cases brought in bad faith. All copyright defenses, including fair use, are available. Because of constitutional limitations, participation with the Board is voluntary, and its decisions do not create precedent.

Creative associations such as The Professional Photographers of America (“PPA”) and the Authors’ Guild are seeing their long-term lobbying efforts come to fruition. The type of creator in need of the new system is what the PPA describes as “low value, high volume” – individuals such as designers, illustrators and photographers – who spend time creating many copyrightable works that are individually of low commercial value. The business of photographers is profoundly affected by online copyright infringement, such that photographers are the prime candidates for the new system (and the example used in this article).

The copyright woes of the independent photographer

Photographers differ from “low volume, high value creators” – such as film directors – who channel their creative efforts into one high value work at a time. A photographer may take hundreds of copyrightable photographs in a day, while also conducting the day-to-day administrative tasks of running a small business. It is easy – and habitual – for Internet users to share photographs without permission, often with watermarks and rights information scrubbed from images or metadata. Exacerbating the issue is the common belief that works of creative expression that appear online – particularly images – are free for the taking. According to a survey by the PPA, 70% of professional photographers have had their work infringed over the past three years.

It is unsurprising that photographers have long protested our “one size fits all” copyright system. Although photographers and filmmakers both depend financially on the licensing of copyright in their works, filmmakers are often better placed to pursue infringement claims. With a stable, financed project overseen by numerous stakeholders, a filmmaker and her studio receive comprehensive legal advice. Attorneys maintain the film’s “IP-hygiene”, including ensuring that copyright in the film (as well as in its posters, soundtrack and other components) is registered with the Copyright Office. Though a creator attains copyright automatically on the creation of the work, the Copyright Act requires that a plaintiff possess a registration certificate before bringing suit for infringement. Registering works in a timely way means that the plaintiff can recover attorney fees from the defendant (17 U.S.C. § 505). It also enables the plaintiff to recover statutory damages, which do not require proof of actual damage, and can be significant (up to $150,000 if the infringing activity is found to be willful) (§ 504(c)).

Softer registration requirements

The registration requirement has been criticized for benefiting the deep-pocketed and well advised over the low-income creators that statutory damages and attorney fees are designed to benefit (Ciolli, 1007). A photographer often lacks the time and money to register his works, given that the Copyright Office’s fees average between $35 – $55 per work, and differ for “published” and “unpublished” works – a distinction many photographers see as burdensome and outdated due to the digital sharing ecosystem. The new small claims system bypasses these difficulties and caters to the reality that most creators do not learn of the legal benefits of a registration certificate until a dispute has arisen that necessitates one. To file a claim, a complainant needs only to have submitted an application for a registration, and can still recover statutory damages if successful. The Board can also award actual damages and profits, but because these are complex calculations in copyright disputes, the combination of statutory damages and soft registration rules will be a boon to photographers.

The Copyright Office will need to create a user-friendly digital platform that allows for e-registrations to be made contemporaneously with the filing of claims. Because many photographers will participate pro se, the platform will be critical in communicating instructions and providing downloadable forms and templates to aid the drafting of briefs. But such a system is probably outside of the Copyright Office’s current IT capacities. Register Maria Pallante has testified to the U.S. House of Representatives that the Copyright Office’s resources are inadequate to support the current digital economy, and that allowing the Copyright Office to establish itself as an autonomous body (independent of the Library of Congress) will give it the authority to make IT investments in furtherance of its own modernization goals (Pallante, 7). Whether these recommendations will eventuate remains to be seen.

Lower costs and streamlined proceedings

It is neither time nor cost effective for a photographer to pursue an infringement claim in a federal court. The PPA has surveyed its members and found that – however numerous – most infringements of single photographs cost below $3,000 (PPA). At the same time, the American Intellectual Property Law Association’s 2015 Report of the Economic Survey indicates that the median cost for a claimant to litigate a copyright infringement suit with less than $1 million at stake through appeal is $250,000 (AIPLA). Even mediating that dispute would cost a median of $40,000 (Ibid.). In addition, according to the 2015 Federal Judicial Caseload Statistics, civil trials take approximately twenty-five months to conclude (Administrative Office of the US Courts). The length is due in part to delaying tactics aimed at draining the other side’s resources and inducing an unequal settlement, such as delaying discovery and filing unnecessary pre-trial motions. Wealthy defendants have strong incentives to behave this way towards low-income adversaries, to ensure that lawyers working pro bono or on contingency bases cannot bear the burden of the full trial.

Indeed, while most content creators are private, most content users – and infringers – are corporate (Wild). The photographer Alex Wild, who left the professional photography business due to frustrations with copyright, writes that his signature extreme close-up insect photographs have been used without permission on venues as diverse as billboards, newspaper articles, video game graphics, company logos, board games, pest-control trucks and iPhone cases (Wild). The corporate disregard for copyright is doubly frustrating to photographers who rely on licenses issued to corporations in those exact sectors.

Key procedures of the Board are aimed at leveling the playing field. To prevent unnecessary delays, rules of civil procedure are simplified, and procedural and discovery-related counterclaims are not accommodated for. Discovery is limited to the production of relevant information, documents and written interrogatories, in order to allow the parties to obtain material facts, establish proof of actual damages, and rebut evidence. The Board also substitutes a formal appeal process with narrow administrative review procedures. This would prevent losing parties with substantial resources from re-litigating a dispute in a federal court.

Potential for collaborative approaches to dispute resolution

Perhaps the Board’s most promising function is to facilitate settlements. The abbreviated and inexpensive trial would give the parties an idea of the merits of their cases, leading to productive discussions, overseen by the Officers. The Board’s utilization of mediation techniques – aided by the Officer with expertise in alternative dispute resolution – could lead to a holistic approach to problem solving. This would give artists an outlet for airing their grievances while also bypassing the power struggles of adversarial trials. Resolutions could lead to innovative and therapeutic business arrangements, such as ongoing royalty fees, partnerships and other agreements.

Criticisms

The CASE Bill is not without its detractors. The foremost worry is that the ease of filing claims will open the Board to abuse by copyright trolls. However, the CASE Bill provides that a Copyright Claims Attorney review each claim to ensure that it complies with copyright law (including, presumably, that it establishes a prima facie case of copyright infringement), before the adversary can be served. In aid of pro se claimants, there are then two opportunities to improve a deficient claim. Though the parties must bear their own costs, the Board may award attorney fees and costs up to $5000 to a party adversely affected by a harassing or improper claim, creating a monetary disincentive against meritless or frivolous claims.

A related worry is that large corporations hiring attorneys will have a significant advantage over pro se parties in terms of the quality of pleadings and submissions. Indeed, organizations such as New Media Rights, California Lawyers for the Arts, and Volunteer Lawyers for the Arts will presumably be vital in helping artists file claims. Interestingly, the CASE Bill also permits qualified law students to represent complainants. Law schools might take this opportunity to set up clinics and internship programs, benefiting both the students taking part and parties in need of representation.

Critics also question whether the Officers should be empowered to make fair use determinations, which are notoriously uncertain and complex. However, as Register Pallante has noted, fair use is a critical safeguard of the Copyright Act (Pallante, 29), which is particularly true with regard to the creation of contemporary art. The availability of the defense will also give respondents an incentive to engage with the Board, and ensure that copyright law continues to align with legitimate consumer expectations. The Officers’ expertise in copyright law will help with the streamlining of fair use decisions. They may develop simpler proxies with which to apply fair use concepts such as transformative use, given that small claims do not have the same cultural and economic ramifications as federal fair use cases (such as the Second Circuit’s recent holding that Google Books amounts to fair use: Authors Guild, Inc. v. Google, Inc.).

Further, the Board does not have a mechanism with which to identify anonymous online infringers. However, its issuance of subpoenas might give further burdensome enforcement duties to Internet Service Providers. Notably, the Copyright Royalty Board has the authority to issue subpoenas but has never exercised this (Copyright Office, 124). The Board also cannot grant injunctions. Though some argue that this might render its determinations toothless, a contrary opinion is that copyright owners can gain unfair leverage through threats of injunctions, and awarding licensing fees in the alternative might lead owners and users to bargain more effectively (Pamela Samuelson et al). Indeed, the Supreme Court in Campbell v. Acuff-Rose noted that a system relying on monetary relief rather than restrictions on commercial behavior might better serve the purposes of copyright and facilitate the lawful use of copyright protected works (at 578 n. 10). The Board can, however, require the respondent to cease the infringing conduct, which appears to be a kind of soft injunction. Because of the voluntary nature of the proceedings, this remedy might function like a contractual promise.

Conclusion

The time is ripe for a new dispute resolution system catering to more diverse range of creators. Currently, the CASE Bill has been referred to the Subcommittee on Courts, Intellectual Property, and the Internet, and has not yet passed the House. Whether it will pass before the next Congressional session begins in January is unclear. But as it incorporates years of research and comments from the Copyright Office, scholars and creative associations, it or a similar law’s incorporation into the Copyright Act seems likely. Indeed, it would align the U.S. with other jurisdictions instigating similar systems, such as the United Kingdom, which in 2012 began to allow informal hearings in its Intellectual Property Enterprise Court regarding claims for infringement of copyright, trademark or unregistered design rights (valued below £10,000). For the U.S., the new system has potential to transform copyright law into an everyday business reality, to give a voice to artists who are currently silenced by the federal system, and to lead to more collaborative and innovative solutions to copyright infringement.

 

Sources:

  • Copyright Alternative in Small-Claims Enforcement Act of 2016, H.R. 5757, 114th Cong. (2016).
  • Copyright Act (17 U.S.C.).
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 n. 10 (1994).
  • Jeffrey Bils, David’s Sling: How to Give Copyright Owners a Practical Way to Pursue Small Claims, 62 U.C.L.A. L. Rev. 464 (2015).
  • Anthony Ciolli, Lowering the Stakes: Toward a Model of Effective Copyright Dispute Resolution 110 W. Va. L. Rev. 1000 (2007).
  • Her Majesty’s Courts & Tribunal Services (United Kingdom), Guide to the Intellectual Property Enterprise Court and Small Claims Track (July, 2014).
  • Virginia Knapp Dorell, Picturing a Remedy for Small Claims of Copyright Infringement, 65 Admin. L. Rev. 449 (2013).
  • Jessica Litman, Real Copyright Reform, 96 Iowa L. Rev. 1 (2010).
  • David Nimmer, A Modest Proposal to Streamline Fair Use Determinations, 24 Cardozo Arts & Ent. L. J. 11 (2006).
  • Register Maria Pallante, The Register’s Perspective on Copyright Review, Statement Before the Committee on the Judiciary, House of Representatives (April 29, 2015).
  • Joel Reidenberg, The Rule of Intellectual Property Law in the Internet Economy, 44 Hous. L. Rev. 1073 (2008).
  • Pamela Samuelson et al., The Copyright Principles Project: Directions for Reform, 25 Berkeley Tech. L. J. 1175 (2010).
  • United States Copyright Office, Copyright Small Claims – A Report of the Register of Copyrights (September 2013).

 

*About the Author: Adelaide Dunn recently graduated with a Master of Laws in Competition, Innovation and Information Law from the New York University School of Law. Before that, she completed a Bachelor of Arts in Art History and a Bachelor of Laws with Honors from The University of Auckland in New Zealand. Adelaide is particularly interested in the intersections of copyright, moral rights and the visual arts. She is currently doing intellectual property, entertainment and commercial law work as a law clerk for a solo practitioner in New York City. Adelaide can be reached at adelaide1dunn@gmail.com.

Towering Ban on Ivory Trade

By Mia Tomijima*

Byzantine ivory relief, Death of the Virgin (around 1000). Photo: © Worcester Art Museum, all rights reserved.

Byzantine ivory relief, Death of the Virgin (around 1000). Worcester Art Museum, MA. 1942 Museum Purchase.

Ever since the United States announced the ban of commercial trade of African elephant ivory in February 2014 in order to protect dwindling populations of the endangered mammal, it seems that not a day has gone by without ivory being mentioned in the news. Recently, a loan of Byzantine-era ivory religious reliefs from the British Museum to the Museum of Russian Icons in Massachusetts was denied an import permit for entry into the U.S., causing the British Museum to revoke its loan of the objects. The news was surprising considering the federal government’s amendments made to regulations assured museums and collectors that ivory as part of a traveling exhibition – which does not have an effect on the supply and demand of ivory – would still be permitted to be imported.

The change in law has naturally been widely well received by environmental and animal rights groups, but has been met with great resistance in the art world. After United States Fish & Wildlife Service’s Director Dan Ashe announced new restrictions over trade in Director’s Order No. 210 on February 25, 2014, criticism over the specific details of the rules caused USFWS to issue amendments to its rules. To date, the rule has been amended twice, on May 15, 2014 and on July 31, 2015. Last month, the federal government solicited comments over its proposal to revise the rules to further restrict interstate commerce and export of ivory, with the exception of antiques (for details, please visit the Federal eRulemaking Portal).

As if these federal changes and proposals were not confusing enough to comply with, many individual U.S. states also enacted state laws to restrict trade further. Critics have questioned the state activism and its enforcement, federal preemption, and whether these regulations will even carry out their intended effect of protecting elephants in their home continent. Center for Art Law now hopes to clarify exactly what is happening in the legal landscape of ivory trade and how it has affected the art world. In this article, we will provide a general history of the federal laws, the recent amendments to the Director’s Order, an overview of individual state laws, and the way it has affected the arts.

 

Brief Background of Relevant Laws

Recognition of the need to protect endangered animals first began with the Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”). Taking effect on July 1, 1975, CITES is a multilateral treaty for nations to cooperate through international trade to ensure protection of certain species against over-exploitation. Today, CITES is signed by 181 nations around the world and affects more than 35,000 species, with varying levels of protection to those appearing on Appendix I (most threatened), Appendix II, and Appendix III. To give effect to the treaty, each signatory country enacts its own laws to protect and regulate the trade of CITES species imported and exported into the country.

In the United States, the need for controlling/protecting endangered species came with the alarming speed of extinction of the once abundant passenger pigeon caused the United States government to first jump to action. The U.S. passed laws such as the Lacey Act of 1900, the Migratory Bird Conservation Act of 1929, the Bald and Golden Eagle Protection Act of 1940, and the Endangered Species Act of 1973 (“ESA”). The ESA, as amended, implements CITES. The ESA makes it illegal for anyone to take, possess, sell, offer for sale in interstate or foreign commerce, import, export, deliver, carry, transport, or ship in the course of a commercial activity, any ESA species or part thereof. Two federal agencies administer these US laws: United States Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration.

Congress built in exceptions into the ESA for certain items, including antiques. Section 1539(h) of the ESA defines “antiques” as more than 100 years old, containing the species article prior to enactment of the Act, and legally imported into the U.S. (either legally with a CITES permit, or if in the U.S. before December 28, 1973, by providing proof of how the antique entered the country and that it was identified as that species when imported). Without getting into the nitty-gritty of the 1973 Act’s exceptions, ivory that was imported legally, either before 1989, or after 1989 with a CITES certificate, could still be sold in the United States.

However, by the 1980’s, Congress found that CITES and the ESA were still insufficient at protecting depleting elephant populations and enacted new legislation. In 1988, Congress enacted the African Elephant Conservation Act (“AECA”), the first multinational conservation act to protect a specific species. The AECA established various moratoria on import or export of raw or worked ivory, effective June 9, 1989. Together, CITES, ESA, and AECA helped decrease demand, and thus supply, for ivory. But recent changes in political initiatives between the U.S. and African nations have necessitated another change in the rules.

 

Developments in the US Federal Law Since 2014

        Alarming reports that over 30,000 African elephants die annually to support a booming black market and that proceeds from ivory poaching fund organized crime and African jihad groups caused environmental groups and nations around the world to jump to action. To curb demand, President Obama issued Executive Order 13648 on July 1, 2013, committing the U.S. to step up its efforts to combat wildlife trafficking. While the previously mentioned laws have been in place for decades, 21st century changes to the ivory trade  were deemed necessary because of the difficulty of enforcement in determining whether an item is truly an antique or just freshly poached ivory, colored to appear aged.

The controlling federal agency, Fish & Wildlife Service, announced new restrictions over trade in its Director’s Order No. 210 (see our previous article for more details), effective February 25, 2014. While this announcement was a triumph for environmental groups, it was a near death-sentence to people who regularly trade or move property containing ivory. Order No. 210 placed an outright ban on importation of African elephant ivory, with limited exportation allowed for antiques. The Order built in exemptions for an “antique” that qualifies under the following documented criteria:

  • (a) It is 100 years or older;
  • (b) It is composed of (in whole or part) of an ESA-listed species;
  • (c) It has not been repaired or modified with any parts of that species after December 27, 1973; and
  • (d) It is being or was imported through an “antique port.”

Even though the Order cured loopholes that existed in other federal acts, it also created seemingly impossible hurdles with which to comply, such as how musicians could travel and perform with musical instruments containing ivory, how antique guns that contain a proportionately small amount of ivory inlay would be affected, and what antique dealers had to prove in order to keep on selling their merchandise. The Order triggered a huge uproar in affected communities, so much so that the agency responded by amending the Order to provide greater clarity and more allowances in May 2014, and once again in July 2015.

 

Federal Amendments

First, the May 2014 amendment of Order No. 210 was revised to permit the import of non-commercial ivory that is either part of a musical instrument, a traveling exhibition, or as part of a household move or inheritance, and removed from the wild prior to February 26, 1976. The May 2014 amendment required that a work qualifying for one of these categories cannot be sold since February 25, 2014, however the July 2015 amendment removes this extra sale date requirement. The July 2015 amendment further restricts the export requirements for non-commercial ivory to only those items that meet the ESA antique exemption, or worked ivory that was legally acquired before February 26, 1976 and is either part of a musical instrument, traveling exhibition, or household move or inheritance, or worked ivory that qualifies as pre-Act. While this new proposed amendment creates greater restriction, it also provides better uniformity with the import rules. The July 2015 amendment also adds an import limit of whole tusk trophies from sport hunting of African elephants to two per hunter per year. Note that once sport-hunted trophies are imported into the U.S., they cannot be exported as they are personal to the hunter who brought them in. FWS hopes that these newly created allowances will exempt items that have little or no effect on current wildlife trafficking.

Second, the May 2014 amendment fixed the glaring problem with the “antique ports.” Before the amendment, a seller of an antique containing ivory trying to qualify for the exception had to prove that a specific object was imported through one of 13 “antique ports.” U.S. Customs and Border Protection designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982, which include: Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois. This antique port rule in the original Order created a complicated situation for objects imported into the United States before Sept. 22, 1982 (prior to when the ports were designated), or manufactured in the U.S., as these would never qualify as an antique. The agency recognized this predicament and amended the order to retain the antique port requirement, but added an exception for items imported before Sept. 22, 1982, or those manufactured in the United States and never imported.

Third, the federal government revised the regulations that implemented the international treaty CITES, in order to reaffirm, clarify, and improve public understanding of the “use-after-import” provisions, so as to reduce sales (including intrastate sales) of ivory and other wildlife imported for noncommercial purposes.

Fourth, the July 2015 proposed amendment is imposing new restrictions on foreign and interstate commerce. Previously, there was no restriction on foreign commerce, but the U.S. is revising the rule to apply to individuals or entities subject to U.S. jurisdiction. The July 2015 amendment restricts sales in foreign settings and across state lines to items that meet the ESA antique exemption and certain manufactured items that contain a small or de minimis amount of ivory. To qualify for the “de minimis” exemption, the item must meet the following conditions:

  • A. If located in the U.S., the ivory must have been imported before January 18, 1990, or imported under a CITES certificate with no limitation on commercial use.
  • B. If located outside the U.S., the ivory must have been removed from the wild before February 26, 1976.
  • C. The ivory is a fixed component of a larger manufactured item and not the primary source of the item’s value.
  • D. The ivory is not raw.
  • E. The manufactured item is not made wholly or primarily of ivory.
  • F. The total weight of the ivory component is less than 200 grams.
  • G. The item must have been manufactured before the effective date of the final rule.

The July 2015 amendment also prohibits foreign commerce in sport-hunted trophies and ivory imported/exported as part of a household move or inheritance. It appears that the federal government is trying to close loopholes that ivory dealers may use to sell their items. Some of the added de minimis requirements are tricky to show and defined vaguely and may leave a considerable amount of discretion up to law enforcement.

Naturally, there are attorneys specializing in CITES issues. According to one such practitioner, William Pearlstein of Pearlstein & McCullough LLP, one big issue with the federal regulation overall is the difficulty of species identification. According to Pearlstein, Asian elephant ivory, which can be imported and sold, is treated differently from African elephant ivory, which cannot. Finding a DNA or biology expert to test an object to determine from which species the ivory was obtained is difficult, expensive and invasive. Pearlstein noted that since federal import and export trade regulations is critical for the art market, the need for a species neutral antique exception that would treat Asian and African elephant ivory the same under U.S. law is vital.

In addition to Order No. 210 and its amendments, federal legislators are now advancing bills in the House and Senate with aims of protecting elephants by increasing enforcement and criminal penalties, while also permitting trade of legally obtained ivory. Senators Daines (R-MT) and Alexander (R-TN) introduced S1769 the African Elephant Conservation and Legal Ivory Possession Act of 2015, to remove the unilateral decision making power of the U.S. Fish and Wildlife Service. The bill permits ivory to be imported or exported under the AECA and the ESA if: (1) the raw ivory or worked ivory is solely for a museum; (2) it was lawfully importable into the United States on February 24, 2014, regardless of when it was acquired; or (3) the worked ivory was previously lawfully possessed in the United States. The bill proposes to decrease poaching by placing a FWS enforcement officer in each African country with a significant elephant population to arrest poachers and work with local wildlife enforcement. Representative Don Young (R-AK) introduced H.R. 697, which mirrors the senate bill. Senator Feinstein (D-CA) and Senator Graham (R-SC) also introduced a bipartisan bill S27 to increase the criminal penalties against those who sell illegal ivory from the small fines and months in prison to larger fines and years in prison, similar to the criminal sentencing for money laundering and racketeering. The Appraisers Association of America is encouraging individuals to contact their Senators and Congressional Representatives to support these bills.

 

States Take Action

As if the new federal laws were not complicated enough, individual states are now joining the fight to protect elephants by passing regulations to stop the trade of ivory. Thus, on May 8, 2014, New Jersey became the first state to pass such a law, prohibiting the import, sale, offering for sale, purchase, barter, or possession with intent to sell any ivory, including rhinoceros horn. Noteworthy is the lack of distinction between Asian and African elephants, which is still present in the federal regulations. New Jersey exempts ivory that was conveyed to legal beneficiaries, with CITES or ESA permits, and those with a bona fide educational or scientific purpose. It also states that appraisals alone do not constitute possession with intent to sell.

The same year, the State of New York was the next to join the prohibition, arguably one of the largest consumer states of ivory. Similarly to New Jersey, New York prohibits the sale, offer for sale, purchase, trade, barter or distribution of elephant and mammoth ivory articles and rhinoceros horn, with limited exceptions, and increased criminal and civil penalties for illegal sales. The law went into effect on August 12, 2014. NY’s Department of Environmental Conservation (“DEC”) may issue licenses or permits for items that meet certain “limited exceptions,” including:

  • Antiques that are at least 100 years old and comprised of less than 20 percent of ivory or horn (“de minimis rule”);
  • The distribution or change in possession is for educational or scientific purposes, or to a museum chartered by the board of regents, or by special charter from the New York State Legislature;
  • The distribution is to a legal beneficiary, heir or distributee of an estate; or
  • The article is a musical instrument that contains ivory or horn and was manufactured no later than 1975.

The “de minimis” rule, where if an item is constituted of 20% or less of ivory, is unique to New York State. When the legislation was passed, arts advocates argued that the state law could be preempted by the federal laws since the laws conflicted as to the exact definition of an exempted antique. William Pearlstein reports that these advocates agreed to back down on this point in exchange for certain additions to the FAQ on the DEC website. Specifically, the 20% de minimis rule would apply only to intrastate sales (within the state of New York), that there would be an exception for internet sales, and that to qualify for the antique exception, one must demonstrate that the ivory is less than 20% by square volume or weight and that reasonable estimates were acceptable for a 100-year-old work. The New York legislature is now allegedly taking back its promises. Pearlstein says that the legislature is taking back its evidentiary requirements as negotiated, and are now requiring date-stamp proof of age, which can be potentially impossible for some items. He states that this backsliding on its previous guarantees is coming from pressure from NGOs and the Clintons, who have both been using their political muscle to see this legislation carried out in full force. The art trade is getting tired of being pushed around and not having their voices heard, especially considering that no such permitting is required under federal law. Thus, it may appear that litigation on the federal preemption issue may be imminent.

This would not be the first time that a state law has come into conflict with federal law for ivory trade. In 1983, the Ninth Circuit ruled that federal law preempted a California statute prohibiting trade in elephant parts within the state. In Man Hing Ivory and Imports v. George Deukmejian, Governor of the State of California, et al., 702 F.2d 760 (9th Cir. 1983), an ivory importer argued that CITES and the ESA preempts state law, which would not allow him to trade under his federal permit. CITES did not apply since it is merely a treaty that requires other implementing laws, but the Court found that Section 6(f) of the ESA and 50 C.F.R. Sec. 17.40(e) of the AECA applied. Section 6(f) specifically states, “[a]ny state law … is void to the extent that it may effectively […] (2) prohibit what is authorized pursuant to an exemption or permit provided for […] in any regulation which implements this chapter.” Moreover, the Court predicted the situation currently unfolding, when it noted in a footnote that if it were “to uphold application of [the California statute] section 653o in the face of federal permits allowing trade in elephant products, we would pave the way for a day when an enterprise such as appellee’s could secure a federal permit authorizing trade in elephant products and yet find itself unable to conduct such trade within the United States because of widespread state adoption of statutes paralleling California’s section 653o. We think it improbable that Congress intended import or export permits under the Endangered Species Act to be revocable by state legislation.”

In light of this ruling, it appears that precedent has at least been set on the West Coast. However, states such as California, Oregon, Hawaii and Washington are all considering or recently enacted state prohibitions against ivory over the past two years. Time will show if the right plaintiff like Man Hing will emerge to challenge federal preemption of these individual state statutes once again.

 

Enforcement & Effect on the Arts

Now that we understand the law and its many iterations, we can look to how it has been implemented and enforced. Not surprisingly, these greater enforcements have made arts and antiquities dealers cautious, and many have had to halt sales of all ivory until the coast is clear. Once expensive and luxurious antiquities, such as chess sets, religious idols, pianos, and violins, are all practically worthless in the eye’s of the marketplace.

On June 19, 2015, FWS crushed nearly one ton of illegally smuggled African elephant ivory in New York City’s Times Square. With this dramatic statement that the government agency dubbed #ivorycrush, the U.S. hopes to set an example to pressure Europe and China to also increase enforcement against trafficking of wildlife.

The laws (of physics) teach us that with every cause, there is an effect. While the measures taken to protect dwindling populations of elephants in no ways lacks merit, the change in law has been met with great reluctance in the art market, where ivory has historically been used for centuries as canvases for miniature portraits, inlays in decorative arts and furniture, and even as musical amplifiers in violins. Prior to the ivory crush in Times Square, FWS permitted Bryna Freyer, senior curator at the National Museum of African Art, and Terry Weisser, director of conservation and technical research as the Walters Art Museum, to evaluate the items to be crushed to determine whether any items had cultural significance worth saving from becoming a pile of ash. Of the ton of items evaluated, Freyer and Weisser saved only two items. The two “pieces of interest” were both side flutes carved in the distinctive style of a tribe in Nigeria, saved because they were recognizable and therefore require greater cultural sensitivity. While proportionately very few items in the crush had value, the fact that there was even one illustrates the conflict of the law’s environmental cause with it’s historical and cultural effects. Freyer stated to Smithsonian Mag: “When this stuff is lost, we lose a chance at better understanding the people who made the object,” adding that piecing together cultural history is like assembling a 500-piece jigsaw puzzle. “You think OK, we’ll get rid of [these pieces]. It’s not going to make a difference, because there are 498 other pieces. But you never know which is the piece that’s going to really help you understand.”

Other reports indicate that enforcement of the order and application of the exceptions are not functioning as expected. The Museum of Russian Icons was denied permits to display six Byzantine ivory reliefs loaned by the British Museum. Despite the pieces dating from the 9th to 12th century (well over the 100 year age requirement) and that they were to be imported for an educational traveling exhibition, FWS declined to issue permits and provided no concrete reason for its denial. The change in plans forced the Museum of Russian Icons to receive a loan at the last minute from the Worcester Art Museum in Massachusetts. Traveling exhibitions have no effect on the marketplace demand for ivory. Furthermore, they help educate the public on mediums formerly used in the arts, and which have since gone out of style. The report from the Museum of Russian Icons serves as a cautionary revelation that FWS and its enforcement officers may be acting contrary to the law and its amendments.

 

Conclusion

Renewed efforts to to protect African elephants are undoubtedly admirable. Legislation protecting endangered elephants from poaching and limiting the trade of ivory has long been on the books. In the years of 2012-13, reports showed that roughly 100,000 elephants were killed in Africa, revealing the inefficacy of those previous laws, and causing new efforts. However, the recent change in law has not yet shown that it can protect elephants anymore than previous laws could. Use of ivory in visual and decorative arts is a historical fact. We can learn from it and make changes for the future. Antique ivory owners and art institutions in possession of ivory-containing artifacts hardly deserve to have their assets devalued. Greater flexibility in regulation and enforcement must be found for these new laws to have their intended effect.

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*About the Author: Mia Tomijima, Brooklyn Law School alumna, is an attorney admitted to New York Bar. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and other arts non-profits. Mia was a post-graduate fellow with Center for Art Law in the Spring 2015.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.