PRINTER'S NO. 1751
No. 1347 Session of 1998
INTRODUCED BY COSTA, O'PAKE, STAPLETON, BELAN, KUKOVICH, SCHWARTZ, MELLOW AND MUSTO, MARCH 11, 1998
REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE, MARCH 11, 1998
AN ACT 1 Regulating the sale of autographed memorabilia; and providing 2 for penalties. 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 Autographed 7 Memorabilia Dealers Act. 8 Section 2. Definitions. 9 The following words and phrases when used in this act shall 10 have the meanings given to them in this section unless the 11 context clearly indicates otherwise: 12 "Autographed." Bearing the actual signature of a person 13 signed by that individual's own hand. 14 "Collectible." An autographed item, including, but not 15 limited to, a photograph, book, ticket, plaque, program, card, 16 item of equipment or clothing, lithograph, print or other 17 artwork, CD-ROM, laser disc, videotape, insert card or other
1 memorabilia sold or offered for sale in or from this 2 Commonwealth by a dealer to a consumer for $25 or more. 3 "Consumer." A natural person who purchases a collectible 4 from a dealer for personal, family or household purposes. The 5 term also includes a prospective purchaser meeting these 6 criteria. 7 "Counterfeit." A copy of a collectible made without 8 authority or right or with a view to deceive or defraud by 9 passing the copy as original or genuine. 10 "Dealer." A person who is in the business of buying, 11 selling, trading or offering for sale or trade collectibles in 12 or from this Commonwealth, exclusively or nonexclusively, or a 13 person who by his occupation holds himself out as having 14 knowledge or skill peculiar to collectibles, or to whom that 15 knowledge or skill may be attributed by his employment of an 16 agent or other intermediary who by his occupation holds himself 17 out as having that knowledge or skill. The term includes: 18 (1) An auctioneer who sells collectibles at public 19 auction. 20 (2) A person who is a consignor, representative or agent 21 of an auctioneer. 22 (3) A person engaged in a mail-order, computer or 23 Internet network, telephone-order or cable television 24 business for the sale of collectibles. 25 "Description." 26 (1) A representation in writing, including, but not 27 limited to, a representation in an advertisement, brochure, 28 computer network, CD-ROM, videotape, catalog, flyer, invoice, 29 sign or other commercial or promotional material. 30 (2) An oral representation. 19980S1347B1751 - 2 -
1 (3) A representation included in a radio or television 2 broadcast to the public in or from this Commonwealth. 3 "Forgery." A signature on a collectible that is not made by 4 the person purporting to be signing but made instead without 5 that person's consent or authorization of the signature. 6 "Limited edition." A collectible that meets all of the 7 following requirements: 8 (1) Production of 1,000 or fewer of an autographed 9 collectible or 10,000 or fewer of any other collectible. 10 (2) Posting of a notice at the primary place of business 11 of the producer, that the producer will provide a consumer, 12 upon request, with a copy of a notice that states the exact 13 number of a collectible produced in that series of limited 14 edition. 15 (3) Making available by the producer, upon request of a 16 consumer, evidence that the electronic encoding, films, molds 17 or plates used to create the collectible have been destroyed 18 after the specified number of collectibles has been produced. 19 "Mint condition." Any collectible sold on the open market or 20 through a private transaction that meets all of the following 21 requirements: 22 (1) The item has never been circulated, used or worn. 23 (2) The item exhibits little or no sign of aging or 24 degradation caused by oxidation or exposure to sunlight as a 25 result of its display. 26 (3) The item is otherwise free from creases, blemishes 27 or marks that have not been tampered with, such as spot, 28 wrinkle or crease removal, restoration, trimming or 29 reprinting. 30 "Person." A natural person, partnership, corporation, 19980S1347B1751 - 3 -
1 limited liability company, trust, association or other entity, 2 however organized. 3 "Promoter." A person, or a designee of a person, who 4 arranges, holds, organizes or presents a trade show featuring 5 collectible or other memorabilia for sale or trade. 6 Section 3. Sales of autographed memorabilia. 7 (a) Certificate of autograph authenticity.--If a dealer, in 8 selling or offering to sell to a consumer a collectible in or 9 from this Commonwealth, provides a description of the 10 collectible as being autographed, the dealer shall furnish a 11 certificate of authenticity to the consumer at the time of the 12 sale. The certificate of authenticity shall be in writing and 13 shall be signed by the dealer or his or her authorized agent. 14 The certificate of authenticity shall be in at least ten-point 15 boldface type and shall contain the dealer's true legal name, 16 street address and phone number. 17 (1) Each certificate of authenticity shall do all of the 18 following: 19 (i) Describe the collectible and specify the name of 20 the person or persons who autographed the collectible and 21 an approximate date, as close to the actual date as 22 possible, of the autograph or autographs. 23 (ii) Specify the purchase price and date of sale of 24 the autographed collectible or be accompanied by a 25 separate invoice setting forth that information. 26 (iii) Contain an express warranty, which shall be 27 irrebuttably presumed to be part of the transaction, of 28 the genuineness and authenticity of the autographed 29 collectible. The warranty shall not be negated or limited 30 by reason of the lack of words such as "warranty" or 19980S1347B1751 - 4 -
1 "guarantee" or because the dealer does not have a 2 specific intent or authorization to make the warranty or 3 because any statement relevant to the collectible is, 4 purports to be or is capable of being merely the dealer's 5 opinion. 6 (iv) Specify if the autographed collectible is 7 offered as genuine or one of a limited edition and, if 8 so, indicate: 9 (A) how the collectible and edition are 10 numbered; or 11 (B) the size of the edition and the size of any 12 prior or anticipated future edition, if known, or, if 13 not known, an explicit statement to that effect. 14 (v) Indicate whether the dealer is surety bonded or 15 is otherwise insured to protect the consumer against 16 errors and omissions of the dealer and, if bonded or 17 insured, provide proof thereof. 18 (vi) Indicate whether the collectible was 19 autographed in the presence of the dealer. 20 (vii) Indicate the name and address of the person 21 who witnessed the signature along with the time, date and 22 place the signature was placed on the collectible. 23 (viii) Indicate whether the collectible was obtained 24 or purchased from a third party and the name and address 25 of the third party. 26 (2) Any collectible that is physically altered or 27 refurbished shall be accompanied by a certificate stating the 28 exact nature of the work done to the collectible and, if 29 known, the date the work was performed, the cost of the work 30 and the name, telephone number and address of the person who 19980S1347B1751 - 5 -
1 performed the work. The certificate shall be signed by the 2 seller of the work. 3 (b) Representations.--No dealer shall represent an item as a 4 collectible if it was not autographed by the person in his or 5 her own hand. 6 (c) Notice of disclosure.--No dealer or promoter shall 7 display or offer for sale a collectible in this Commonwealth 8 unless at the location where the collectible is offered for sale 9 and in close proximity to the collectible merchandise there is a 10 conspicuous sign that reads as follows: 11 SALE OF AUTOGRAPHED MEMORABILIA. PENNSYLVANIA LAW 12 REQUIRES A DEALER WHO SELLS FOR $25 OR MORE MEMORABILIA 13 DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN 14 CERTIFICATE OF AUTHENTICITY AT THE TIME OF THE SALE. THIS 15 DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO 16 ENSURE THE AUTHENTICITY OF ANY COLLECTIBLE SOLD BY THIS 17 DEALER. 18 (d) Order business sales.--A dealer engaged in a mail-order, 19 computer or Internet network, telephone-order or cable 20 television business for the sale of collectibles in or from this 21 Commonwealth shall: 22 (1) Include the disclosure specified in subsection (c), 23 in type of conspicuous size, in any written advertisement 24 relating to a collectible. 25 (2) Include in each television advertisement relating to 26 a collectible the following written on-screen message, which 27 shall be prominently displayed, easily readable and clearly 28 visible for not less than five seconds and shall be repeated 29 for five seconds once during each four-minute segment of the 30 advertisement following the initial four minutes: 19980S1347B1751 - 6 -
1 A WRITTEN CERTIFICATE OF AUTHENTICITY IS PROVIDED WITH 2 EACH AUTOGRAPHED COLLECTIBLE AS REQUIRED BY LAW. THIS 3 DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO 4 ENSURE THE AUTHENTICITY OF ANY COLLECTIBLE SOLD BY THIS 5 DEALER. 6 (3) Include as part of the oral message of each radio 7 advertisement for a collectible the disclosure specified in 8 subsection (c). 9 (e) Trade show sales.--No dealer shall display or offer for 10 sale a collectible at any trade show or similar event primarily 11 featuring sale of collectibles or other memorabilia which offers 12 onsite admission ticket sales unless at each onsite location 13 where admission tickets are sold there is prominently displayed 14 a specimen example of a certificate of authenticity. 15 (f) Notice to trade show participants.--Whenever a promoter 16 arranges or organizes a trade show featuring collectibles, the 17 promoter shall notify in writing any dealer who has agreed to 18 purchase or rent space in the trade show what the promoter will 19 do if any laws of this Commonwealth are violated, including the 20 fact that law enforcement officials will be contacted when those 21 laws are violated. This notice shall be delivered to the dealer 22 at his or her registered place of business and at the time the 23 agreement to purchase space in the trade show is made. The 24 following language shall be included in each notice: 25 AS A VENDOR AT THIS COLLECTIBLES TRADE SHOW, YOU ARE A 26 PROFESSIONAL REPRESENTATIVE OF THIS HOBBY. AS A RESULT, 27 YOU WILL BE REQUIRED TO FOLLOW THE LAWS OF THIS 28 COMMONWEALTH, INCLUDING LAWS REGARDING THE SALE AND 29 DISPLAY OF COLLECTIBLES, FORGED AND COUNTERFEIT 30 COLLECTIBLES AND AUTOGRAPHS AND MINT AND LIMITED EDITION 19980S1347B1751 - 7 -
1 COLLECTIBLES AS PROVIDED IN ACT . IF YOU DO NOT OBEY 2 THE LAW, YOU MAY BE EVICTED FROM THIS TRADE SHOW, BE 3 REPORTED TO LAW ENFORCEMENT AND BE HELD LIABLE FOR A 4 CIVIL PENALTY OF TEN TIMES THE AMOUNT OF DAMAGES. 5 (g) Consumer's remedies.--A consumer injured by the failure 6 of a dealer to provide a certificate of authenticity containing 7 the information required under this section or by a dealer's 8 furnishing of a false certificate of authenticity shall be 9 entitled to recover, in addition to actual damages, a civil 10 penalty in an amount equal to ten times actual damages, plus 11 court costs and reasonable attorney fees incurred by the 12 consumer in the action. The remedy specified in this section is 13 in addition to and not in lieu of any other remedy that may be 14 provided by law. 15 (h) Options for indemnity.--A dealer may be surety bonded or 16 otherwise insured for purposes of indemnification against errors 17 and omissions arising from the authentication, sale or resale of 18 collectibles. 19 Section 4. Sales of altered or counterfeit memorabilia. 20 (a) Certificate of alteration or refurbishment.--Any 21 memorabilia that is altered or refurbished shall be accompanied 22 by a certificate stating the exact work done to the memorabilia 23 and, if known, the date the work was performed, the cost of the 24 work and the name, telephone number and address of the person 25 who performed the work. 26 (b) Counterfeit memorabilia prohibited.--A person, or his 27 agent, who knowingly manufactures, produces, sells, trades or 28 distributes unlicensed or counterfeit memorabilia with the 29 intent to deceive, injure or defraud another is liable to the 30 buyer. 19980S1347B1751 - 8 -
1 (c) Memorabilia cut from publications prohibited.--Any 2 person who knowingly sells a cut, unlicensed item or items that 3 have been produced by cutting the item or items from a 4 publication in which unlicensed sports trading cards are bound 5 without disclosing the source and the means of producing the 6 card with the intent to deceive, injure or defraud another is 7 civilly liable to the buyer. 8 Section 5. Penalties. 9 (a) Uncertificated memorabilia.--A person, or his agent, who 10 knowingly sells or trades collectibles in violation of section 4 11 shall: 12 (1) Refund to the buyer the full amount paid for the 13 altered or refurbished item or items or the full retail value 14 of any nonmonetary consideration received in exchange for the 15 altered or refurbished memorabilia. 16 (2) Be liable to the buyer and person whose name was 17 forged for a civil penalty of not more than $5,000 for each 18 violation. Each item or items sold represents a separate and 19 distinct violation. 20 (b) Counterfeit memorabilia sales.--A person, or his agent, 21 who violates section 4(b) shall: 22 (1) Refund to the buyer the full amount paid for the 23 unlicensed or counterfeit memorabilia or the full retail 24 value of any nonmonetary consideration received in exchange 25 for the unlicensed or counterfeit memorabilia. 26 (2) Be liable to the buyer for a civil penalty of not 27 more than $5,000 for each violation. Each item or items sold 28 represents a separate and distinct violation. 29 (c) Cut memorabilia sales.--A person who violates section 30 4(c) shall: 19980S1347B1751 - 9 -
1 (1) Refund to the buyer the full consideration paid or 2 furnished for the cut, unlicensed memorabilia. 3 (2) Be liable to the buyer for a civil penalty of not 4 more than $5,000 for each violation. Each item or items sold 5 represents a separate and distinct violation. 6 Section 6. Power of Attorney General. 7 The Attorney General is authorized to protect consumers who 8 collect memorabilia sold or traded within this Commonwealth. 9 Section 7. Attorney fees and costs. 10 A person who obtains a judgment on the merits in a court 11 proceeding to recover moneys or other consideration paid for 12 memorabilia under section 3, 4, 5 or 6 shall be entitled to 13 attorney fees and costs of prosecuting the action. 14 Section 8. Statute of limitations. 15 Any action to enforce a cause of action arising under this 16 act shall be barred unless commenced within one year after 17 discovery of the violation upon which it is based and in no 18 event more than three years after the memorabilia was sold or 19 traded. 20 Section 9. Effective date. 21 This act shall take effect in 60 days. B13L12JLW/19980S1347B1751 - 10 -