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The Berman Amendment:
why you can buy and sell Cuban informational products in the US

Under the informational materials exemption of the Cuban Assets Control Regulations, 31 C.F.R. Part 515 (the "CACR"), prior authorization is not required for a variety of informational transactions between the US and Cuba. This means there is no need for a license from or even any communication with the US government, Treasury, OFAC, the State Department or any other branch prior to engaging in any informational transaction.

The "informational materials exemption, " also known as the "Berman amendment," is found in § 2502(a) of the Omnibus Trade and Competitiveness Act, Pub. L. No. 100-418, 102 Stat. 1107 (1988), and § 525 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, 108 Stat. 382 (1994). These amendments to § 5(b)(a) of the Trading with the Enemy Act, 50 USC. App. §§1-44 ("TWEA"), restrict the President’s authority to regulate, directly or indirectly, the importation or exportation of information or informational materials, regardless of the format or medium of transmission or whether the information or informational materials are for personal or commercial use. Sections 5 15.206 and 5 15.332 of the CACR, respectively, provide notice of this exemption and define the term "information and informational materials."

Section 5 15.545 of the CACR contains a general license covering transactions incident to such exportation and importation.

Informational materials has been deemed to include books, magazines, videos, music, electronic information, photos, paintings, sculptures, and other works of art. This was revised in 1994 to include electronic media.

The Amendment is named after representative Howard Berman, Democrat of California. It has been in force since 1988 and would require new legislation to overturn it, an unlikely prospect. No executive order can touch it.

Berman prohibits the creation of new works. Penalties here are severe, one case resulted in a 4 year prison sentence. The prohibition extends to subscriptions unless the subscription item is well established with an existing circulation.

However, this has changed as of April, 2016, when OFAC modified the Cuban Assets Control Regulations and allowed US persons and corporations to hire Cubans performing services, which can include the production of informational products:

Section 515.582: Authorized Importations Into the United States From Independent Cuban Entrepreneurs, also deals with services.

The State Department's Section 515.582 List, 4/22/2016 Provides the regulatory support for hiring people who produce informational products.    [Version español]

"In accordance with the policy changes announced by the President on December 17, 2014, to further engage and empower the Cuban people, Section 515.582 of the Cuban Assets Control Regulations (31 CFR Part 515 – the CACR) authorizes the importation into the United States of certain goods and services produced by independent Cuban entrepreneurs as determined by the State Department as set forth on the Section 515.582 List, below. [The entrepreneur cannot also work for any Cuban government entity.]

...The authorized services pursuant to 31 CFR 515.582 are services supplied by an independent Cuban entrepreneur in Cuba, as demonstrated by documentary evidence. Persons subject to U.S. jurisdiction engaging in import transactions involving services supplied by an independent Cuban entrepreneur pursuant to § 515.582 are required to obtain documentary evidence that demonstrates the entrepreneur’s independent status, such as a copy of a license to be self-employed issued by the Cuban government or, in the case of an entity, evidence that demonstrates that the entrepreneur is a private entity that is not owned or controlled by the Cuban government. Supply of services must comply with other applicable state and federal laws."

Cuban authors, programmers, filmmakers, artists, etc can retain rights to their work.


UNITED STATES OF AMERICA v. ALI AMIRNAZMI, Appellant, US District Court 1/11/2011 Case law on Berman discussed on p 44 and following.

Florida: ACLU Fights Artistic and Cultural Censorship

Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations
Williams & Mary Law Review, Vol 54, Issue 1, 2012  and
An extensive discussion of the issues, including how OFAC is not following the law.

Cuban artist's work goes on sale in Gables

OFAC’s Interpretation of IEEPA’s “Informational Materials” Exemption, Association of American Publishers, 1/2004


Published Friday, April 9, 1999, in the Miami Herald

Cuban artist's work goes on sale in Gables

El Nuevo Herald

In the aftermath of recent musical and baseball exchanges between Cuba and the United States, the works of Cuban artist Manuel Mendive are for sale in Coral Gables starting today.

But in the context of the U.S. trade embargo against Cuba, questions have been raised as to whether Mendive's one-man show at Gary Nader Fine Arts, 3306 Ponce de Leon Blvd., is a cultural act or a commercial transaction.

The works will be sold on consignment, with prices ranging between $8,000 and $25,000. Gary Nader Fine Art will receive a commission for the sales; the rest of the money will be deposited in a bank in Spain, where Mendive is represented by the Guaita Gallery on the island of Majorca.

Mendive can sell his works in the United States because the 1963 law imposing a trade embargo against Cuba, as modified by the Berman Amendment of 1989, exempts artistic creations. Monetary restrictions do not apply because payments are not made directly to institutions or individuals in Cuba.

Exhibitor Joan Guaita said his connection with the painter should not be ruled by American laws.

``Ours is a relationship in the Spanish style. For me, art cannot be conditioned by political and legal issues,'' he said.

Gary Nader, the gallery's director, said the Mendive show is an exceptional opportunity to display ``the cultural patrimony that belongs to the Cuban people and extends to other parts of the world.

``There's a strong market in Miami, with works by [Rene] Portocarrero, [Mario] Carreño, Amelia Pelaez and Mariano Rodriguez that are sold for thousands of dollars at auction houses. And the buyers are Cuban exiles,'' he said.

Nader added that his role in the presentation of Mendive's works should not be construed as support for the Cuban government.

Elsewhere in Coral Gables, Jose Martinez Cañas, director of Elite Fine Art, 3140 Ponce de Leon Blvd., has a different attitude.

``I won't represent or sell the works of artists who live in Cuba because I would be helping the Castro government in a business transaction,'' he said.

Mendive's show also was questioned in Washington, where Rep. Lincoln Diaz-Balart, R-Miami, said that ``the Clinton administration is wrongly interpreting that exemption, thus allowing alleged cultural exchanges to become a business for the Cuban regime.''

Mendive, 54, said he doesn't understand ``laws or paperwork or politics. I do know about flora, fauna and Santeria, and I know that the most beautiful law is to love life.''

Eleven years ago, his painting The Peacock was burned on a street of Little Havana by an anti-Castro exile who bought it earlier for $500.

Copyright © 1999 The Miami Herald

 Publishing Activities Involving Manuscripts from Sanctioned Countries
OFAC discusses what constitutes permissible and non permissible editing of foreign informational products from sanctioned countries.

Publication Activities Performed by U.S. Newspapers

Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations, 2012, William & Mary Law Review




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