PRINTER'S NO. 519
No. 458 Session of 1983
INTRODUCED BY DeWEESE, CLYMER, McHALE, ZWIKL AND GANNON,
MARCH 16, 1983
REFERRED TO COMMITTEE ON BUSINESS AND COMMERCE, MARCH 16, 1983
AN ACT
1 Regulating the sale of visual art objects produced in multiples;
2 and providing penalties.
3 TABLE OF CONTENTS
4 Section 1. Short title.
5 Section 2. Legislative findings.
6 Section 3. Definitions.
7 Section 4. Full disclosure in the sale of certain visual art
8 objects produced in multiples.
9 Section 5. Information required for post-effective date
10 productions.
11 Section 6. Information required for 1950 to effective date
12 productions.
13 Section 7. Information required for 1900 to 1949 productions.
14 Section 8. Information required for pre-1900 productions.
15 Section 9. Express warranties.
16 Section 10. Construction.
17 Section 11. Remedies and enforcement.
1 Section 12. Applicability.
2 Section 13. Effective date.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Visual Art
7 Object Sale Act.
8 Section 2. Legislative findings.
9 The General Assembly finds as follows:
10 (1) The sale of visual art objects produced in
11 multiples, specifically prints and photographs, affects large
12 segments of the public. In volume and monetary value the
13 marketing of these objects has substantially increased during
14 the past two decades. Those affected by this development
15 include a broad spectrum of individuals, as well as corporate
16 and institutional purchasers. This expansion is stimulated in
17 part by the convergence of several factors. One is an
18 intensified interest in and appreciation of aesthetic
19 qualities in art and cultural and artistic pursuits. Another
20 is a felt need to acquire art.
21 (2) Among the main questions to be answered, and about
22 which information is necessary, in determining the value of
23 visual art multiples, in addition to recognized and
24 established intrinsic aesthetic merit, are:
25 (i) Whether the multiple is properly attributed to
26 the named artist.
27 (ii) Whether the multiple was signed by the artist
28 after it was produced.
29 (iii) Whether the multiple is a reproduction of a
30 work formerly created by the artist in a different
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1 medium.
2 (iv) Whether the purported number of multiples in a
3 "limited edition" is the actual number.
4 (v) Whether there are other editions of the same or
5 virtually the same image.
6 (3) In order to avoid confusion on the part of the
7 consumer, disclosure of salient factors, which legitimate
8 merchants voluntarily provide, is essential. The disclosure
9 will have the beneficial effects of:
10 (i) Alleviating confusion.
11 (ii) Preventing deceptive merchandising practices.
12 (iii) Providing a basis for further consumer self-
13 education.
14 (iv) Protecting the public in areas where abuse is
15 not immediately discernable.
16 Section 3. Definitions.
17 The following words and phrases when used in this act shall
18 have the meanings given to them in this section unless the
19 context clearly indicates otherwise:
20 "Art merchant." A person who deals in the visual art objects
21 produced in multiples to which this act is applicable, or a
22 person who by his occupation holds himself out as having
23 knowledge or skill peculiar to such works, or to whom such
24 knowledge or skill may be attributed by his employment of an
25 agent or other intermediary who by his occupation holds himself
26 out as having such knowledge or skill. The term includes an
27 auctioneer who sells such works at public auction, but excludes
28 persons, not otherwise defined or treated as art merchants
29 herein, who are consignors or principals of auctioneers.
30 "Artist." The person who conceived or created the image
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1 which is contained in or constitutes the master.
2 "Limited edition." Visual art multiples produced from a
3 master, all of which are the same image and bear numbers or
4 other markings to denote the limited production thereof to a
5 stated maximum number of multiples or are otherwise held out as
6 limited to a maximum number of multiples.
7 "Master." When used alone, is used in lieu of and means the
8 same as such things as printing plate, stone, block, screen,
9 photographic negative or other like material which contains an
10 image used to produce visual art objects in multiples.
11 "Person." An individual, partnership, corporation,
12 association or other entity, however organized.
13 "Print." In addition to meaning a multiple produced by, but
14 not limited to, such processes as engraving, etching,
15 woodcutting, lithography and serigraphy, also means multiples
16 produced or developed from photographic negatives, or any
17 combination thereof.
18 "Proofs." Multiples which are the same as, and which are
19 produced from the same master as, the multiples in a limited
20 edition, but which, whether so designated or not, are set aside
21 from and are in addition to the limited edition to which they
22 relate.
23 "Signed." Autographed by the artist's own hand, and not by
24 mechanical means of reproduction, after the multiple was
25 produced, whether or not the master was signed or unsigned.
26 "Visual art multiples" or "multiples." For the purposes of
27 this act the terms mean prints, photographs (positive or
28 negative) and similar art objects produced in more than one copy
29 and sold, offered for sale or consigned in, into or from this
30 Commonwealth for an amount in excess of $100 exclusive of any
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1 frame. Pages or sheets taken from books and magazines and
2 offered for sale or sold as visual art objects shall be
3 included, but books and magazines are excluded.
4 "Written instrument." A written or printed agreement, bill
5 of sale, invoice, certificate of authenticity, catalogue or any
6 other written or printed note or memorandum describing the
7 multiple which is to be sold, exchanged or consigned by an art
8 merchant.
9 Section 4. Full disclosure in the sale of certain visual art
10 objects produced in multiples.
11 (a) Written instrument required.--An art merchant shall not
12 sell or consign a multiple in, into or from this Commonwealth
13 unless a written instrument is furnished to the purchaser or
14 consignee, prior to a sale or consignment, which sets forth as
15 to each multiple the descriptive information required by section
16 5 for any period. With respect to auctions, this information may
17 be furnished in catalogues or other written materials which are
18 made readily available for consultation and purchase prior to
19 sale, provided that a bill of sale, receipt or invoice
20 describing the transaction is then provided which makes
21 reference to the catalogue and lot number in which such
22 information is supplied. Information supplied pursuant to this
23 subsection shall be clearly, specifically and distinctly
24 addressed to each of the items listed in section 5 unless the
25 required data is not applicable. This section is applicable to
26 transactions between merchants and nonmerchants and other art
27 merchants.
28 (b) Descriptive information required.--An art merchant shall
29 not cause a catalogue, prospectus, flyer or other written
30 material or advertisement to be distributed in, into or from
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1 this Commonwealth which solicits a direct sale, by inviting
2 transmittal of payment for a specific multiple, unless it
3 clearly sets forth, in close physical proximity to the place in
4 such material where the multiple is described, the descriptive
5 information required by section 5 for any time period. In lieu
6 of this required information, such written material or
7 advertising may set forth the material contained in the
8 following quoted passage, or the passage itself, containing
9 terms the nonobservance of which shall constitute a violation of
10 this act, if the art merchant then supplies the required
11 information prior to or with delivery of the multiple:
12 "Pennsylvania law provides for disclosure in writing of
13 certain information concerning multiples of prints and
14 photographs when sold for more than $100 each, exclusive of
15 any frame, prior to effecting a sale of them. This law
16 requires disclosure of such matters as the identity of the
17 artist, the artist's signature, the medium, whether the
18 multiple is a reproduction, the time when the multiple was
19 produced, use of the master which produced the multiple, and
20 the number of multiples in a limited edition. If a
21 prospective purchaser so requests, the information shall be
22 transmitted to him prior to payment or the placing of an
23 order for a multiple. If payment is made by a purchaser prior
24 to delivery of such an art multiple, this information will be
25 supplied at the time of or prior to delivery, in which case
26 the purchaser is entitled to a refund if, for reasons related
27 to matter contained in such information, he returns the
28 multiple substantially in the condition in which received,
29 within 30 days of receiving it. In addition, if after payment
30 and delivery, it is ascertained that the information provided
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1 is incorrect, the purchaser may be entitled to certain
2 remedies."
3 This requirement is not applicable to general written material
4 or advertising which does not constitute an offer to effect a
5 specific sale.
6 (c) Sign to be posted.--In each place of business in the
7 Commonwealth where an art merchant is regularly engaged in sales
8 of multiples, the art merchant shall post in a conspicuous
9 place, a sign which in a legible format contains the information
10 included in the following passage:
11 "Pennsylvania law provides for the disclosure in writing
12 of certain information concerning prints and photographs.
13 This information is available to you in accordance with that
14 law."
15 Section 5. Information required for post-effective date
16 productions.
17 The following information shall be supplied, as indicated, as
18 to each multiple produced after the effective date of this act:
19 (1) State the name of the artist.
20 (2) If the artist's name appears on the multiple, state
21 whether the multiple was signed by the artist. If not signed
22 by the artist then state the source of the artist's name on
23 the multiple, such as whether the artist placed his signature
24 on the master, whether his name was stamped or estate stamped
25 on the multiple, or was from some other source or in some
26 other manner placed on the multiple.
27 (3) (i) Describe the medium or process and, where
28 pertinent to photographic processes, the material used in
29 producing the multiple such as whether the multiple was
30 produced through the etching, engraving, lithographic,
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1 serigraphic or a particular method and/or material used
2 in photographic developing processes. If an established
3 term, in accordance with the usage of the trade, cannot
4 be employed accurately to describe the medium or process,
5 a brief, clear description shall be made.
6 (ii) If the artist was deceased at the time the
7 master was made which produced the multiple, this shall
8 be stated.
9 (iii) If the multiple or the image on or in the
10 master constitutes a mechanical, photomechanical or
11 photographic copy or reproduction of an image previously
12 created or produced by the artist in another medium or on
13 or in a different master, for a purpose other than the
14 creation of the multiple being described, this
15 information and the respective mediums shall be stated.
16 (iv) If subparagraph (iii) is applicable, and the
17 multiple is not signed, state whether the artist
18 authorized or approved in writing the multiple or the
19 edition of which the multiple being described is one.
20 (4) (i) If the multiple is a "posthumous" multiple,
21 that is, if the master was created during the life of the
22 artist but the multiple was produced after the artist's
23 death, this shall be stated.
24 (ii) If the multiple was made from a master which
25 produced a prior limited edition, or from a master which
26 constitutes or was made from a reproduction of a prior
27 multiple or the master which produced such prior limited
28 edition, this shall be stated.
29 (5) As to multiples produced after 1949, state the year
30 or approximate year the multiple was produced. As to
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1 multiples produced prior to 1950, state the year, approximate
2 year or period when the master was made which produced the
3 multiple and/or when the particular multiple being described
4 was produced. The requirements of this paragraph shall be
5 satisfied when the year stated is approximately accurate.
6 (6) (i) State whether or not the multiple being
7 described is offered as one of a limited edition. If it
8 is offered as one of a limited edition, then state the
9 number of multiples in the edition and whether and how
10 the multiple is numbered.
11 (ii) Unless otherwise disclosed, the number of
12 multiples stated pursuant to subparagraph (i) shall
13 constitute an express warranty, as defined in section 9,
14 that no additional numbered multiples of the same image,
15 exclusive of proofs, have been produced.
16 (iii) The number of multiples stated pursuant to
17 subparagraph (i) shall also constitute an express
18 warranty, as defined in section 9, that no additional
19 multiples of the same image, whether designated "proofs"
20 other than trial proofs, numbered or otherwise, have been
21 produced in an amount which exceeds the number in the
22 limited edition by ten or 10%, whichever is greater.
23 (iv) If the number of multiples exceeds the number
24 in the stated limited edition as provided in subparagraph
25 (iii), then state the number of proofs other than trial
26 proofs, or other numbered or unnumbered multiples, in the
27 same or other editions produced from the same master or
28 from another master as described in subparagraph (ii) and
29 whether and how they are signed and numbered.
30 Section 6. Information required for 1950 to effective date
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1 productions.
2 The information which shall be supplied as to each multiple
3 produced during the period from 1950 to the effective date of
4 this act, shall consist of the information required by section 5
5 except for paragraphs (3)(iv), (4)(ii) and (6)(iii) and (iv).
6 Section 7. Information required for 1900 to 1949 productions.
7 The information which shall be supplied as to each multiple
8 produced during the period from 1900 through 1949 shall consist
9 of the information required by section 5 except for paragraphs
10 (2), (3)(ii), (iii) and (iv), (4) and (6).
11 Section 8. Information required for pre-1900 productions.
12 The information which shall be supplied as to each multiple
13 produced prior to 1900 shall consist of the information required
14 by section 5 except for paragraphs (3)(ii), (iii) and (iv), (4)
15 and (6).
16 Section 9. Express warranties.
17 (a) Name of artist furnished prior to 1950.--Whenever an art
18 merchant furnishes the name of the artist pursuant to section
19 5(1) as to multiples created prior to 1950, such merchant shall
20 be bound only by the provisions of 13 Pa.C.S. Ch. 23 (relating
21 to general obligation and construction of contract), but that
22 chapter shall be deemed to include sales to art merchants.
23 (b) Name of artist furnished after 1949.--Whenever an art
24 merchant furnishes the name of the artist pursuant to section
25 5(1) for any time period after 1949, and otherwise furnishes
26 information required by any of the paragraphs of section 5 for
27 any time period, as to transactions including offers, sales or
28 consignments made to nonmerchants and to another art merchant,
29 such information shall be a part of the basis and the bargain
30 and shall create express warranties as to the information
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1 provided. Such warranties shall not be negated or limited
2 because the merchant in the written instrument did not use
3 formal words such as "warrant" or "guarantee" or because the
4 merchant did not have a specific intention or authorization to
5 make a warranty or because any required statement is or purports
6 to be, or is capable of being merely the seller's opinion. The
7 existence of a basis in fact for information warranted by virtue
8 of this subsection shall not be a defense in an action to
9 enforce such warranty. However, with respect to photographs
10 produced prior to 1950, and other multiples produced prior to
11 1900, as to information required by section 5(3), the merchant
12 shall be deemed to have satisfied this section if a reasonable
13 basis in fact existed for the information provided. When
14 information is not supplied as to any paragraph of section 5
15 because not applicable, this shall constitute the express
16 warranty that the paragraph is not applicable.
17 (c) Disclaimer.--Whenever an art merchant disclaims
18 knowledge as to a particular item about which information is
19 required, such disclaimer shall be ineffective unless clearly,
20 specifically and categorically stated as to such particular item
21 and contained in the physical context of other language setting
22 forth the required information as to a specific multiple.
23 Section 10. Construction.
24 (a) Rights in addition to other rights.--The rights,
25 liabilities and remedies created by this act shall be construed
26 to be in addition to and not in substitution, exclusion or
27 displacement of other rights, liabilities and remedies provided
28 by law, except where such construction would, as a matter of
29 law, be unreasonable.
30 (b) Artist not regarded as art merchant.--Whenever an artist
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1 sells or consigns a multiple of his own creation, the artist
2 shall incur the obligations prescribed by this act for an art
3 merchant, but an artist shall not otherwise be regarded as an
4 art merchant.
5 (c) No liability upon compliance.--An artist or merchant who
6 consigns a multiple to a merchant for the purpose of effecting a
7 sale of the multiple shall have no liability to a purchaser
8 under this act if such consignor, as to the consignee, has
9 complied with the provisions of this act.
10 (d) Merchant as agent.--When a merchant has agreed to act as
11 the agent for a consignor, who is not an art merchant, for the
12 purpose of effecting the sale of a multiple, or when a merchant
13 has agreed to act as the agent for an artist for the purpose of
14 supplying the information required by this act, such merchant
15 shall incur the liabilities prescribed by this act as to a
16 purchaser. However, if such a merchant can establish that his
17 liability results from incorrect information which was provided
18 by the consignor or artist to him in writing and the merchant in
19 good faith relied on such information, the consignor or artist
20 shall similarly incur such liabilities as to the purchaser and
21 such merchant.
22 Section 11. Remedies and enforcement.
23 (a) Liability of art merchant.--An art merchant, including a
24 merchant consignee, who offers or sells a multiple in, into or
25 from this Commonwealth without providing the information
26 required in sections 4 and 5 for any time period, or who
27 provides information which is mistaken, erroneous or untrue,
28 except for harmless errors such as typographical errors, shall
29 be liable to the purchaser to whom the multiple was sold. The
30 merchant's liability shall consist of the consideration paid by
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1 the purchaser with interest from the time of payment, upon the
2 return of the multiple in substantially the same condition in
3 which received by the purchaser. This remedy shall not bar or be
4 deemed inconsistent with a claim for damages or with the
5 exercise of additional remedies otherwise available to the
6 purchaser.
7 (b) Disclaimer relied upon.--In any proceeding in which an
8 art merchant relies upon a disclaimer of knowledge as to any
9 relevant information set forth in section 5 for any time period,
10 such disclaimer shall be effective unless the claimant is able
11 to establish that the merchant failed to make reasonable
12 inquiries, according to the custom and usage of the trade, to
13 ascertain the relevant information or that such relevant
14 information would have been ascertained as a result of such
15 reasonable inquiries.
16 (c) Further liability of art merchant.--If an art merchant
17 offers or sells a multiple and:
18 (1) willfully fails to provide the information set forth
19 in sections 4 and 5 for any time period;
20 (2) knowingly provides false information; or
21 (3) the purchaser can establish that the merchant
22 willfully and falsely disclaimed knowledge as to any relevant
23 information, the purchaser of such a multiple may recover
24 from the art merchant an amount equal to three times the
25 amount recoverable under subsection (a). As to this paragraph
26 and paragraph (1), a merchant may introduce evidence of the
27 relevant usage and custom of the trade in any proceeding in
28 which such treble damages are sought.
29 (d) Costs, fees and expenses.--In any action to enforce any
30 provision of this act, the court may allow the prevailing
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1 purchaser the costs of the action together with reasonable
2 attorneys' and expert witnesses' fees. In the event, however,
3 the court determines that an action to enforce was brought in
4 bad faith, it may allow such expenses to the art merchant as it
5 deems appropriate.
6 Section 12. Applicability.
7 This act shall apply to the visual art objects governed by
8 this act which are sold, offered for sale, consigned or
9 possessed with intent to sell in, into or from this
10 Commonwealth. With respect to such multiples it shall apply six
11 months after the effective date of this act.
12 Section 13. Effective date.
13 This act shall take effect January 1, 1984.
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