JOURNAL OF BUSINESS ENTREPRENEURSHIP & THE LAW
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A Tale of Tulips: A Counterpoint to Courts Codifying Collectibles

A Tale of Tulips: A Counterpoint to Courts Codifying Collectibles

The goal of this Note is to educate the courts and public of the patent inconsistencies and latent implications of judicial interference in the art and collectibles market, as prosecutors, judges, and the public risk unraveling the delicate fabric of its legal and economic framework. Part II of the Note will closely examine the economics of the art and collectibles marketplace, from internal changes at the auction house to external changes in the global marketplace. In particular, the Note will examine the Asian marketplace, which has led the global expansion of art and collectibles, and the potential dangers of the class of investors it brings. This discussion will include consideration of a potential speculative bubble emerging and will provide historical patterns and lessons by which to measure the market. The concepts of behavioral finance and irrational exuberance will lead into a better understanding of where the courts are misreading the warning signs inside the current marketplace. Part III of this Note will primarily focus on a legal critique of the failed policies enacted in response to this burgeoning multibillion-dollar industry of fine art and rare collectibles. It will discuss American intellectual property and dispel the merits of cherry-picking certain foreign intellectual property laws derived from wholly different cultural standpoints, including French moral rights. This Note will include a comprehensive analysis of the California Resale Royalty Act (CRRA), including constitutional and economic considerations. Finally, it will address the latest arguments surrounding copyright preemption and attempt to provide guidance for the court, the public, and defense attorneys in favor of affirming the unconstitutionality of the CRRA in whole. Part IV of this Note will provide support for the conclusion that the judiciary should not interfere with the market. It will begin by reiterating a longstanding discussion of the difficulty in defining art, present several foreseeable implications of drafting a judicial definition, and ultimately conclude that the free market, not the court system, is best suited for resolving any perceived inequities.

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