PRINTER'S NO. 704
No. 637 Session of 1997
INTRODUCED BY CLYMER, WALKO, OLASZ, MELIO, ARGALL, PISTELLA,
LYNCH, FICHTER, HENNESSEY, YOUNGBLOOD, CLARK, READSHAW,
LEDERER, WOJNAROSKI, STEIL, GRUITZA, BATTISTO, GANNON,
SATHER, BELARDI, BUNT, STEELMAN, TIGUE, JOSEPHS, PETTIT,
ROONEY, TRELLO, GEIST, ITKIN AND E. Z. TAYLOR,
FEBRUARY 26, 1997
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, FEBRUARY 26, 1997
AN ACT
1 Regulating the purchase and sale of visual works of art produced
2 in multiples; and providing for the disclosure to prospective
3 art purchasers of information relating to works of art, for
4 warranties, remedies and enforcement and for certain civil
5 and criminal penalties.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short title.
9 This act shall be known and may be cited as the Art Law.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Art merchant." A person who is in the business of dealing,
15 exclusively or nonexclusively, in the visual art objects
16 produced in multiples to which this act is applicable, or a
17 person who by his occupation holds himself out as having
1 knowledge or skill peculiar to such works, or to whom such
2 knowledge or skill may be attributed by his employment of an
3 agent or other intermediary who by his occupation holds himself
4 out as having such knowledge or skill. The term includes an
5 auctioneer who sells such works at public auction, but excludes
6 persons not otherwise defined or treated as art merchants in
7 this act who are consignors or principals of auctioneers.
8 "Artist." The person who conceived or created the image
9 which is contained in or constitutes the master.
10 "Consumer Protection Law." The act of December 17, 1968
11 (P.L.1224, No.387), known as the Unfair Trade Practices and
12 Consumer Protection Law.
13 "Limited edition." Visual art multiples produced from a
14 master, all of which are the same image and bear numbers or
15 other markings to denote the limited production thereof to a
16 stated maximum number of multiples, or are otherwise held out as
17 limited to a maximum number of multiples.
18 "Master." A printing plate, stone, block, screen,
19 photographic negative or other like material which contains an
20 image used to produce visual art objects in multiples.
21 "Person." An individual, partnership, corporation,
22 association or other entity, however organized.
23 "Print." In addition to meaning a multiple produced by, but
24 not limited to, such processes as engraving, etching,
25 woodcutting, lithography and serigraphy, also means multiples
26 produced or developed from photographic negatives, or any
27 combination thereof.
28 "Proofs." Multiples which are the same as, and which are
29 produced from the same master as, the multiples in a limited
30 edition, but which, whether so designated or not, are set aside
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1 from and are in addition to the limited edition to which they
2 relate.
3 "Signed." Autographed by the artist's own hand, and not by
4 mechanical means of reproduction, after the multiple was
5 produced, whether or not the master was signed or unsigned.
6 "Visual art multiples" or "multiples." Prints, photographs
7 (positive or negative) and similar art objects produced in more
8 than one copy and sold, offered for sale or consigned in, into
9 or from this Commonwealth for an amount in excess of $100
10 exclusive of any frame. The term includes pages or sheets taken
11 from books and magazines and offered for sale or sold as visual
12 art objects. The term does not include books and magazines.
13 "Written instrument." A written or printed agreement, bill
14 of sale, invoice, certificate of authenticity, catalogue or any
15 other written or printed note or memorandum or label describing
16 the multiple which is to be sold, exchanged or consigned by an
17 art merchant.
18 Section 3. Full disclosure in sale of certain visual art
19 objects produced in multiples.
20 (a) General rule.--An art merchant shall not sell or consign
21 a multiple in, into or from this Commonwealth unless a written
22 instrument is furnished to the purchaser or consignee, at his
23 request, or in any event prior to a sale or consignment, which
24 sets forth as to each multiple the descriptive information
25 required by this act for the appropriate time period. If a
26 prospective purchaser so requests, the information shall be
27 transmitted to him prior to the payment or placing of an order
28 for a multiple. If payment is made by a purchaser prior to
29 delivery of such an art multiple, this information shall be
30 supplied at the time of or prior to delivery. With respect to
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1 auctions, this information may be furnished in catalogues or
2 other written materials which are readily available for
3 consultation and purchase prior to sale, provided that a bill of
4 sale, receipt or invoice describing the transaction is then
5 provided which makes reference to the catalogue and lot number
6 in which the information is supplied. Information supplied under
7 this subsection shall be clearly, specifically and distinctly
8 addressed to each item as required by this act for any time
9 period unless the required data is not applicable. This section
10 is applicable to transactions by and between merchants,
11 nonmerchants and others considered art merchants for the
12 purposes of this act.
13 (b) Notice requirement for catalogue, prospectus, etc.--An
14 art merchant shall not cause a catalogue, prospectus, flyer or
15 other written material or advertisement to be distributed in,
16 into or from this Commonwealth which solicits a direct sale, by
17 inviting transmittal of payment for a specific multiple, unless
18 it clearly sets forth, in close physical proximity to the place
19 in such material where the multiple is described, the
20 descriptive information required by this act for the appropriate
21 time period. In lieu of this required information, the written
22 material or advertising may set forth the material contained in
23 the following quoted passage, or the passage itself, containing
24 terms the nonobservance of which shall constitute a violation of
25 this act, if the art merchant then supplies the required
26 information prior to or with delivery of the multiple:
27 "The act of (P.L. , No. ), known as
28 the Art Law provides for disclosure in writing of certain
29 information concerning multiples of prints and
30 photographs when sold for more than $100 each, exclusive
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1 of any frame, and of sculpture when sold for more than
2 $1,500, prior to effecting a sale of them. This law
3 requires disclosure of such matters as the identity of
4 the artist, the artist's signature, the medium, whether
5 the multiple is a reproduction, the time when the
6 multiple was produced, use of the master which produced
7 the multiple and the number of multiples in a 'limited
8 edition.' If a prospective purchaser so requests, the
9 information shall be transmitted to him prior to payment
10 or the placing of an order for a multiple. If payment is
11 made by a purchaser prior to delivery of such an art
12 multiple, this information shall be supplied at the time
13 of or prior to delivery, in which case the purchaser is
14 entitled to a refund if, for reasons related to matter
15 contained in such information, he returns the multiple
16 substantially in the condition in which received, within
17 30 days of receiving it. In addition, if, after payment
18 and delivery, it is ascertained that the information
19 provided is incorrect, the purchaser may be entitled to
20 certain remedies."
21 This requirement is not applicable to general written material
22 or advertising which does not constitute an offer to effect a
23 specific sale.
24 (c) Posting of notice.--In each place of business in the
25 state where an art merchant is regularly engaged in sales of
26 multiples, the art merchant shall post in a conspicuous place, a
27 sign which, in a legible format, contains the information
28 included in the following passage:
29 "The act of (P.L. , No. ), known as
30 the Art Law provides for disclosure in writing of certain
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1 information concerning prints, photographs and sculpture.
2 This information is available to you in accordance with
3 that law."
4 Section 4. Information required.
5 The following information shall be supplied, as indicated, as
6 to each multiple produced:
7 (1) Artist.--State the name of the artist.
8 (2) Signature.--If the artist's name appears on the
9 multiple, state whether the multiple was signed by the
10 artist. If not signed by the artist, then state the source of
11 the artist's name on the multiple, such as whether the artist
12 placed his signature on the master, whether his name was
13 stamped or estate stamped on the multiple, or was from some
14 other source or in some other manner placed on the multiple.
15 (3) Medium or process.--
16 (i) Describe the medium or process, and where
17 pertinent to photographic processes the material, used in
18 producing the multiple, such as whether the multiple was
19 produced through etching, engraving, lithographic,
20 serigraphic or a particular method and material used in
21 the photographic developing processes. If an established
22 term, in accordance with the usage of the trade, cannot
23 be employed accurately to describe the medium or process,
24 a brief, clear description shall be made.
25 (ii) If the purported artist was deceased at the
26 time the master was made which produced the multiple,
27 this shall be stated.
28 (iii) If the multiple or the image on or in the
29 master constitutes a mechanical, photomechanical,
30 handmade or photographic type of reproduction, or is a
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1 reproduction, of an image produced in a different medium,
2 for a purpose other than the creation of the multiple
3 being described, this information and the respective
4 mediums shall be stated.
5 (iv) If subparagraph (iii) is applicable and the
6 multiple is not signed, state whether the artist
7 authorized or approved in writing the multiple or the
8 edition of which the multiple being described is one.
9 (4) Use of master.--
10 (i) If the multiple is a "posthumous" multiple, that
11 is, if the master was created during the life of the
12 artist but the multiple was produced after the artist's
13 death, this shall be stated.
14 (ii) If the multiple was made from a master which
15 produced a prior limited edition or from a master which
16 constitutes or was made from a reproduction of a prior
17 multiple or of a master which produced prior multiples,
18 this shall be stated.
19 (5) Time produced.--As to multiples produced during or
20 after 1950, state the year or approximate year the multiple
21 was produced. As to multiples produced prior to 1950, state
22 the year, approximate year or period when the master was made
23 which produced the multiple or when the particular multiple
24 being described was produced. The requirements of this
25 paragraph shall be satisfied when the year stated is
26 approximately accurate.
27 (6) Size of the edition.--
28 (i) If the multiple being described is offered as
29 one of a limited edition, this shall be so stated, as
30 well as the number of multiples in the edition, and
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1 whether and how the multiple is numbered.
2 (ii) Unless otherwise disclosed, the number of
3 multiples stated under subparagraph (i) shall constitute
4 an express warranty, as defined in section 7, that no
5 additional numbered multiples of the same image,
6 exclusive of proofs, have been produced.
7 (iii) The number of multiples stated under
8 subparagraph (i) shall also constitute an express
9 warranty, as defined in section 7, that no additional
10 multiples of the same image, whether designated "proofs"
11 other than trial proofs, numbered or otherwise, have been
12 produced in an amount which exceeds the number in the
13 limited edition by 20 or 20%, whichever is greater.
14 (iv) If the number of multiples exceeds the number
15 in the stated limited edition as provided in subparagraph
16 (iii), then state the number of proofs other than trial
17 proofs, or other numbered or unnumbered multiples, in the
18 same or other prior editions, produced from the same
19 master as described in paragraph (4)(ii), and whether and
20 how they are signed and numbered.
21 Section 5. Information required for multiples produced during
22 certain periods.
23 (a) January 1, 1950, to effective date of act.--The
24 information which shall be supplied as to each multiple produced
25 during the period from January 1, 1950, to the effective date of
26 this act shall consist of the information required by section 4
27 except for section 4(3)(iv), (4)(ii) and (6)(iii) and (iv).
28 (b) January 1, 1900, to December 31, 1949.--The information
29 which shall be supplied as to each multiple produced during the
30 period from January 1, 1900, to December 31, 1949, shall consist
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1 of the information required by section 4 except for section
2 4(3)(ii), (iii) and (iv), (4) and (6).
3 (c) Prior to 1900.--The information which shall be supplied
4 as to each multiple produced prior to 1900 shall consist of the
5 information required by section 4 except for section 4(2),
6 (3)(ii), (iii) and (iv), (4) and (6).
7 Section 6. Information required for sculptures.
8 (a) General rule.--The following information shall be
9 supplied as indicated in a written instrument as to each
10 multiple produced, fabricated or carved, on or after the
11 effective date of this act:
12 (1) Artist.--State the name of the artist.
13 (2) Title.--State the title of the sculpture.
14 (3) Foundry.--State the name, if known, of the foundry
15 which or person who produced, fabricated or carved the
16 sculpture.
17 (4) Medium.--Describe the medium or process used in
18 producing the multiple. If an established term, in accordance
19 with the usage of the trade, cannot be employed accurately to
20 describe the medium or process, a brief, clear description
21 shall be made.
22 (5) Dimensions.--State the dimensions of the sculpture.
23 (6) Time produced.--State the year the sculpture was
24 cast, fabricated or carved.
25 (7) Number cast.--State the number of sculpture casts,
26 according to the best information available, produced or
27 fabricated or carved as of the date of the sale.
28 (8) Artist deceased.--If the purported artist was
29 deceased at the time the sculpture was produced, this shall
30 be stated.
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1 (9) Use of master.--State whether the sculpture is
2 authorized by the artist or, if produced after the artist's
3 death, whether it was authorized in writing by the artist or
4 by the estate, heirs or other legal representatives of the
5 artist. In the event of a sale after the initial sale, the
6 art merchant may disclose in writing evidence of such
7 reasonable inquiries as have been made under section 9(b) and
8 any information imparted as may be relevant in fulfilling the
9 intent of this paragraph.
10 (b) Limited edition sculpture.--For limited edition
11 sculpture produced on or after the effective date of this act,
12 in addition to the information required to be provided under
13 subsection (a), the following items of information shall also be
14 provided to the purchaser in a written instrument:
15 (1) Whether and how the sculpture and the edition is
16 numbered.
17 (2) The size of the edition or proposed edition and the
18 size of any prior edition or editions of the same sculpture,
19 regardless of the color or material used.
20 (3) Whether additional sculpture casts have been
21 produced in excess of the stated size of the edition or
22 proposed edition and, if so, the total number of such excess
23 casts produced or proposed to be produced and whether and how
24 they are or will be numbered according to the stated
25 intention of the artist or a statement that the artist has
26 not disclosed his intention about the number of additional
27 casts or their numbering. Additional sculpture casts shall
28 include all casts from the same master regardless of their
29 color, material or size.
30 (4) Whether the artist has stated in writing a
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1 limitation on the number of additional sculpture casts to be
2 produced in excess of the stated size of the edition or
3 proposed edition and, if so, the total number of such excess
4 casts produced or proposed to be produced and whether and how
5 they are or will be numbered according to the stated
6 intention of the artist or the estate, heirs or other legal
7 representatives of the artist or a statement that the artist
8 has not disclosed his intention about the number of
9 additional casts or their numbering. Additional sculpture
10 casts shall include all casts from the same master regardless
11 of their color, material or size.
12 (c) Certain sculpture copies.--For copies of sculpture not
13 made from the master and produced after the effective date of
14 this act, in addition to the information required to be provided
15 under subsections (a) and (b), the following items of
16 information shall also be provided to the purchaser in a written
17 instrument:
18 (1) The means by which the copy was made.
19 (2) Whether the copy was authorized by the artist or the
20 estate, heirs or other legal representatives of the artist.
21 (3) Whether the copy is of the same material and size as
22 the master.
23 Section 7. Warranty provisions.
24 (a) General rule.--Information provided under this act shall
25 create and express warranty. When information is not supplied
26 because it is not applicable, this shall constitute an express
27 warranty that such required information is not applicable.
28 (b) Express warranties.--Notwithstanding any provision of
29 any other law to the contrary:
30 (1) Whenever an art merchant, in selling or exchanging a
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1 work of fine art, furnishes to a buyer of such work who is
2 not an art merchant a certificate of authenticity or any
3 similar written instrument it:
4 (i) shall be presumed to be part of the basis of the
5 bargain; and
6 (ii) shall create an express warranty for the
7 material facts stated as of the date of such sale or
8 exchange.
9 (2) Except as provided in paragraph (4) a warranty shall
10 not be negated or limited provided that, in construing the
11 degree of warranty, due regard shall be given the terminology
12 used and the meaning accorded to that terminology by the
13 customs and usage of the trade at the time and in the
14 locality where the sale or exchange took place.
15 (3) Language used in a certificate of authenticity or
16 similar written instrument stating that:
17 (i) the work is by a named author or has a named
18 authorship, without any limiting words, means
19 unequivocally that the work is by such named author or
20 has such named authorship;
21 (ii) the work is "attributed to a named author"
22 means a work of the period of the author, attributed to
23 him, but not with certainty by him; or
24 (iii) the work is of the "school of a named author"
25 means a work of the period of the author or by a pupil or
26 close follower of the author, but not by the author.
27 (4) (i) An express warranty and disclaimers intended to
28 negate or limit the warranty shall be construed wherever
29 reasonable as consistent with each other but subject to
30 13 Pa.C.S. § 2202 (relating to final written expression:
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1 parol or extrinsic evidence), negation or limitation is
2 inoperative to the extent that such construction is
3 unreasonable.
4 (ii) Such negation or limitation shall be deemed
5 unreasonable if:
6 (A) the disclaimer is not conspicuous, written
7 and apart from the warranty, in words which clearly
8 and specifically apprise the buyer that the seller
9 assumes no risk, liability or responsibility for the
10 material facts stated concerning such work of fine
11 art. Words of general disclaimer are not sufficient
12 to negate or limit an express warranty;
13 (B) the work of fine art is proved to be a
14 counterfeit and this was not clearly indicated in the
15 description of the work; or
16 (C) the information provided is proved to be, as
17 of the date of sale or exchange, false, mistaken or
18 erroneous.
19 (c) Penalty for falsifying certificates of authenticity or
20 similar written instrument.--A person who, with intent to
21 defraud, deceive or injure another, makes, utters or issues a
22 certificate of authenticity or any similar written instrument
23 for a work of fine art attesting to material facts which the
24 work does not in fact possess commits a misdemeanor of the third
25 degree.
26 (d) Express warranties for multiples.--
27 (1) When an art merchant furnishes the name of the
28 artist of a multiple, or otherwise furnishes information
29 required by this act for any time period as to transactions,
30 including offers, sales or consignments, the provisions of
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1 subsection (b) shall apply except that subsection (b) shall
2 be deemed to include sales to art merchants. The existence of
3 a reasonable basis in fact for information warranted shall
4 not be a defense in an action to enforce that warranty,
5 except in the case of photographs produced prior to 1950, and
6 multiples produced prior to 1900.
7 (2) The provisions of subsection (b)(4) shall apply when
8 an art merchant disclaims knowledge as to a multiple about
9 which information is required by this act, provided that, in
10 addition, such disclaimer shall be ineffective unless
11 clearly, specifically and categorically stated as to each
12 item of information and contained in the physical context of
13 other language setting forth the required information as to a
14 specific multiple.
15 (e) Construction.--
16 (1) The rights and liabilities created by this section
17 shall be construed to be in addition to and not in
18 substitution, exclusion or displacement of other rights and
19 liabilities provided by law, including the law of principal
20 and agent, except where such construction would, as a matter
21 of law, be unreasonable.
22 (2) No art merchant who, as buyer, is excluded from
23 obtaining the benefits of an express warranty under this act
24 shall thereby be deprived of the benefits of any other
25 provision of law.
26 Section 8. Construction of act.
27 (a) General rule.--The rights, liabilities and remedies
28 created by this act shall be construed to be in addition to and
29 not in substitution, exclusion or displacement of other rights,
30 liabilities and remedies provided by law, except where such
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1 construction would, as a matter of law, be unreasonable.
2 (b) Incurrence of certain obligations.--Whenever an artist
3 sells or consigns a multiple of his own creation, the artist
4 shall incur the obligations prescribed by this act for an art
5 merchant, but an artist shall not otherwise be regarded as an
6 art merchant.
7 (c) Nonliability to purchaser.--An artist or merchant who
8 consigns a multiple to a merchant for the purpose of effecting a
9 sale of the multiple shall have no liability to a purchaser
10 under this act if such consignor, as to the consignee, has
11 complied with the provisions of this act.
12 (d) Incurrence of merchants' liability.--When a merchant has
13 agreed to sell a multiple on behalf of a consignor, who is not
14 an art merchant, or when an artist has not consigned a multiple
15 to a merchant, but the merchant has agreed to act as the agent
16 for an artist for the purpose of supplying the information
17 required by this act, such merchant shall incur liabilities of
18 other merchants prescribed by this act as to a purchaser.
19 (e) Incorrect information.--When an art merchant or merchant
20 is liable to a purchaser under this act, as a result of
21 providing information in the situations referred to in
22 subsections (a), (b), (c) and (d), as well as when a merchant
23 purchased a multiple from another merchant, if the merchant or
24 art merchant can establish that his liability results from
25 incorrect information which was provided by the consignor,
26 artist or merchant to him in writing, the merchant who is liable
27 in good faith relied on such information, the consignor, artist
28 or merchant shall similarly incur liabilities as to the
29 purchaser and the merchant.
30 Section 9. Remedies and enforcement.
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1 (a) Merchant's liability.--An art merchant, including a
2 merchant consignee, who offers or sells a multiple in, into or
3 from this Commonwealth without providing the information
4 required by this act for the appropriate time period, or who
5 provides required information which is mistaken, erroneous or
6 untrue, except for harmless errors such as typographical errors,
7 shall be liable to the purchaser to whom the multiple was sold.
8 The merchant's liability shall consist of the consideration paid
9 by the purchaser with interest from the time of payment at the
10 statutory rate, upon the return of the multiple in substantially
11 the same condition in which received by the purchaser. This
12 remedy shall not bar or be deemed inconsistent with a claim for
13 damages or with the exercise of additional remedies otherwise
14 available to the purchaser.
15 (b) Disclaimer of knowledge.--In any proceeding in which an
16 art merchant relies upon a disclaimer of knowledge as to any
17 relevant information required by this act for the appropriate
18 time period, the disclaimer shall be effective only if it
19 complies with section 8, unless the claimant is able to
20 establish that the merchant failed to make reasonable inquiries,
21 according to the custom and usage of the trade, to ascertain the
22 relevant information or that such relevant information would
23 have been ascertained as a result of such reasonable inquiries.
24 (c) Multiples.--
25 (1) The purchaser of such a multiple may recover from
26 the art merchant an amount equal to three times the amount
27 recoverable under subsection (a) if an art merchant offers,
28 consigns or sells a multiple and:
29 (i) willfully fails to provide the information
30 required by this act for the appropriate time period;
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1 (ii) knowingly provides false information; or
2 (iii) the purchaser can establish that the merchant
3 willfully and falsely disclaimed knowledge as to any
4 required information.
5 (2) Pursuant to paragraph (1)(i) and (iii), a merchant
6 may introduce evidence of the relevant usage and custom of
7 the trade in any proceeding in which such treble damages are
8 sought.
9 (d) Costs and expenses.--In any action to enforce any
10 provision of this act, the court may allow the prevailing
11 purchaser the costs of the action, together with reasonable
12 attorney and expert witness fees. In the event, however, the
13 court determines that an action to enforce was brought in bad
14 faith, it may allow such expenses to the art merchant as it
15 deems appropriate.
16 (e) Period of limitations.--Any action to enforce any rights
17 under this act shall be brought within the period prescribed for
18 such actions by 13 Pa.C.S. Div. 2 (relating to sales).
19 Section 10. Enjoining violations.
20 Any violation of this act shall be deemed to be unlawful and
21 a violation of the Consumer Protection Law. The Attorney General
22 may bring an action pursuant to the Consumer Protection Law to
23 enjoin violations of this act and seek restitution for any
24 person so entitled. In any such action or proceeding, the
25 Attorney General may recover, in addition to any other relief
26 provided in the Consumer Protection Law, a civil penalty of not
27 more than $500 to be forfeited to the Commonwealth. In
28 connection with any proposed action or proceeding, the Attorney
29 General is authorized to gather evidence and make a
30 determination of the relevant facts and to issue subpoenas in
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1 accordance with the applicable rules of court.
2 Section 11. Repeals.
3 All acts and parts of acts are repealed insofar as they are
4 inconsistent with this act.
5 Section 12. Effective date.
6 This act shall take effect in 120 days.
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