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 19970H0637B0704 - 2 -
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 19970H0637B0704 - 3 -
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 19970H0637B0704 - 4 -
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 19970H0637B0704 - 5 -
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 19970H0637B0704 - 6 -
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 19970H0637B0704 - 7 -
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 19970H0637B0704 - 8 -
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. 19970H0637B0704 - 9 -
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 19970H0637B0704 - 10 -
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 19970H0637B0704 - 11 -
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: 19970H0637B0704 - 12 -
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 19970H0637B0704 - 13 -
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 19970H0637B0704 - 14 -
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. 19970H0637B0704 - 15 -
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; 19970H0637B0704 - 16 -
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 19970H0637B0704 - 17 -
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. A13L12DGS/19970H0637B0704 - 18 -