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.
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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,
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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
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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
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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:
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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
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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.
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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:
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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.
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