2000-H 7295
Enacted 7/20/2000

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Introduced By:  Representatives Lewiss, Palangio, Moura, Callahan and Kilmartin Date Introduced:  February 2, 2000

It is enacted by the General Assembly as follows:

SECTION 1. Section 5-62-2 of the General Laws in Chapter 5-62 entitled "Works of Art - Artists' Rights" is hereby amended to read as follows:

5-62-2. Definitions -- Whenever used in this chapter except where the context clearly requires, the terms listed below have the following meanings:

(1) "Artist" means the creator of a work of fine art;

(1) "Artist" means the creator of a work of fine art or, in the case of multiples, the person who conceived or created the image which is contained in or which constitutes the master from which the individual print was made;

(2) "Conservation" means acts taken to correct deterioration and alteration and acts taken to prevent, stop, or retard deterioration;

(3) "Person" means an individual, partnership, corporation, association, or other group, however organized;

(4) "Reproduction" means a copy, in any medium, of a work of fine art, that is displayed or published under circumstances that, reasonably construed, evinces an intent that it be taken as a representation of a work of fine art as created by the artist;

(5) "Work of fine art" means any original work of visual or graphic art of any medium which includes, but is not limited to, the following: painting; drawing; print; photographic print or sculpture of a limited edition of no more than three hundred (300) copies; provided, that "work of fine art" does not include sequential imagery such as that in motion pictures. ;

(6) "Art merchant" means a person who is in the business of dealing, exclusively or non-exclusively, in works of fine art or multiples, or a person who by his occupation holds himself out as having knowledge or skill peculiar to such works, or to whom such knowledge or skill may be attributed by his employment of an agent or other intermediary who by his occupation holds himself out as having such knowledge or skill. The term "art merchant" includes an auctioneer who sells such works at public auction, and except in the case of multiples, includes persons, not otherwise defined or treated as art merchants herein, who are consignors or principals of auctioneers;

(7) "Author" or "authorship" refers to the creator of a work of fine art or multiple or to the period, culture, source or origin, as the case may be, with which the creation of such work is identified in the description of the work;

(8) "Creditors" means "creditor" as defined in subdivision twelve of section 1-201 of the uniform commercial code;

(9) "Counterfeit" means a work of fine art or multiple made, altered or copied, with or without intent to deceive, in such manner that it appears or is claimed to have an authorship which it does not in fact possess;

(10) "Certificate of authenticity" means a written statement by an art merchant confirming, approving or attesting to the authorship of a work of fine art or multiple, which is capable of being used to the advantage or disadvantage of some person;

(11) "Craft" means a functional or non-functional work individually designed, and crafted by hand, in any medium including, but not limited to, textile, tile, paper, clay, glass, fiber, wood, metal or plastic; provided, however, that if produced in multiples, craft shall not include works mass produced or produced in other than a limited edition;

(12) "Limited edition" means works of art produced from a master. All of which are the same image and bear numbers or other markings to denote the limited production thereof to a stated maximum number of multiples, or are otherwise held out as limited to a maximum number of multiples;

(13) "Master" when used alone is used in lieu of and means the same as such things as printing plate, stone, block, screen, photographic negative or other like material which contains an image used to produce visual art objects in multiples, or in the case of sculptures, a mold, model, cast, form or other prototype, other than from glass, which additional multiples of sculpture are produced, fabricated or carved;

(14) "Print" in addition to meaning a multiple produced by, but not limited to, such processes as engraving, etching, woodcutting, lithography and serigraphy, also means multiples produced or developed from photographic negatives, or any combination thereof;

(15) "Proofs" means multiples which are the same as, and which are produced from the same masters as, the multiples in a limited edition, but which, whether so designated or not, are set aside from and are in addition to the limited edition to which they relate;

(16) "Reproduction right" means a right to reproduce, prepare derivative works of, distribute copies of, publicly perform or publicly display a work of fine art;

(17) "Sculpture" means a three-dimensional fine art object produced, fabricated or carved in multiple from a mold, model, cast, form or other prototype, other than from glass, sold, offered for sale or consigned in, into or from this state for an amount in excess of fifteen hundred dollars;

(18) "Signed" means autographed by the artist's own hand, and not by mechanical means of reproduction, after the multiple was produced, whether or not the master was signed or unsigned;

(19) "Visual art multiples" or "multiples" means prints, photographs, positive or negative, sculpture and similar art objects produced in more than one copy and sold, offered for sale or consigned in, into or from this state for an amount in excess of one hundred dollars exclusive of any frame or in the case of sculpture, an amount in excess of fifteen hundred dollars. Pages or sheets taken from books and magazines and offered for sale or sold as visual art objects shall be included, but books and magazines are excluded;

(20) "Written instrument" means a written pr printed agreement, bill of sale, invoice, certificate of authenticity, catalogue or any other written or printed note or memorandum or label describing the work of fine art or multiple which is to be sold, exchanged or cosigned by an art merchant.

(21) "On consignment" means that no title to, estate in, or right to possession of, the work of fine art or multiple that is superior to that of the cosigner vests in the cosignee, notwithstanding the cosignee's power or authority to transfer or convey all the right, title and interest of the cosignor, in and to such work, to a third person.

SECTION 2. Chapter 5-62 of the General Laws entitled "Works of Art - Artists' Rights" is hereby amended by adding thereto the following sections:

5-62-7. Artists - - art merchant relationships. -- (a) Notwithstanding any custom, practice or usage of the trade, any provision of the uniform commercial code or any other law, statute, requirement or rule, or any agreement, note, memorandum or writing to the contrary:

(1) Whenever an artist or craftperson, his heirs or personal representatives, delivers or causes to be delivered a work of fine art, craft or a print of his own creation to an art merchant for the purpose of exhibition and/or sale on a commission, fee or other basis of compensation, the delivery to an acceptance thereof by the art merchant establishes a cosignor/cosignee relationship as between such artist or craftsperson and such art merchant with respect to the said work, and;

(i) such cosignee shall thereafter be deemed to be the agent of such cosignor with respect to the said work;

(ii) such work is trust property in the hands of the cosignee for the benefit of the cosignor;

(iii) any proceeds from the sale of such work are trust funds in the hands of the cosignee for the benefit of the cosignor;

(iv) such work shall remain trust property notwithstanding its purchase by the cosignee for his own account until the price is paid in full to the cosignor; provided that, if such work is resold to a bona fide third party before the cosignor has been paid in full, the resale proceeds are trust funds in the hands of the cosignee for the benefit of the cosignor to the extent necessary to pay any balance still due to the cosignor and such trusteeship shall continue until the fiduciary obligation of the cosignee with respect to such transaction is discharged in full; and

(v) no such trust property or trust funds shall be subject or subordinate to any claims, liens or security interest of any kind or nature whatsoever.

(2) Waiver of any provision of this section is absolutely void except that a cosignor may lawfully waive the provisions of clause (iii) of paragraph (a) of this subdivision, if such waiver is clear, conspicuous, in writing and subscribed by the cosignor, provided:

(i) no such waiver shall be valid with respect to the first two thousand five hundred dollars of gross proceeds of sales received in any twelve-month period commencing with the date of the execution of such waiver;

(ii) no such waiver shall be valid with respect to the proceeds of a work initially received on consignment but subsequently purchased by the cosignee directly or indirectly for his own account; and

(iii) no such waiver shall inure to the benefit of the cosignee's creditors in any manner which might be inconsistent with the cosignor's rights under this subdivision.

(3) proceeds from the sale of cosigned works covered by this section shall be deemed to the revenue from the sale of tangible goods and not revenue from the provision of services to the cosignor or others, except that the provisions of this paragraph shall not apply to proceeds from the sale of cosigned works sold at public auction.

(b) Nothing in this section shall be construed to have any effect upon any written or oral contract or arrangement in existence prior to September 1, 2000 or to any extensions or renewals thereof except by mutual written consent of the parties thereof.

5-62-8. Exemption from seizure. - - No process of attachment, execution, sequestration, replevin, distress or any kind of seizure shall be served or levied upon any work of fine art while the same is enrout to or from, or while on exhibition or deposited by a nonresident exhibitor at any exhibition held under the auspices or supervision of any museum, college, university or other nonprofit art gallery, institution or organization within any city or county of this state for any cultural, educational, charitable or other purpose not conducted for profit to the exhibitor, nor shall such work of fine art be subject to attachment, seizure, levy or sale, for any cause whatever in the hands of the authorities of such exhibition or otherwise.

5-62-9. Express warranties. -- Notwithstanding any provision of any other law to the contrary:

1. Whenever an art merchant, in selling or exchanging a work of fine art, furnishes to a buyer of such work who is not an art merchant a certificate of authenticity or any similar written instrument it:

(i) Shall be presumed to be part of the basis of the bargain; and

(ii) Shall create an express warranty for the material facts stated as of the date of such sale or exchange.

2. Except as provided in subdivision four of this section, such warranty shall not be negated or limited provided that in construing the degree of warranty, due regard shall be given the terminology used and the meaning accorded such terminology by the customs and usage of the trade at the time and in the locality where the sale or exchange took place.

3. Language used in a certificate of authenticity or similar written instrument, stating that:

(i) The work is by a named author or has a named authorship, without any limiting words, means unequivocally, that the work is by such named author or has such named authorship;

(ii) The work is "attributed to a named author" means a work of the period of the author, attributed to him, but not with certantity by him; or

(iii) The work is of the "school of a named author" means a work of the period of the author, by a pupil or close follower of the author, but not by the author.

4. (i) An express warranty and disclaimers intended to negate or limit such warranty shall be construed wherever reasonable as consistent with each other but subject to the provisions of section 2-202 of the uniform commercial code on parole or extrinsic evidence, negation or limitation is inoperative to the extent that such construction is unreasonable.

(ii) Such negation or limitation shall be deemed unreasonable if:

(A) the disclaimer is not conspicuous, written and apart from the warranty, in words which clearly and specifically apprise the buyer that the seller assumes no risk, liability or responsibility for the material facts stated concerning such work of fine art. Words of general disclaimer are not sufficient to negate or limit an express warranty; or

(B) the work of fine art is proved to be a counterfeit and this was not clearly indicated in the description of the work; or

(C) the information provided is proved to be , as of the date of sale or exchange, false, mistaken or erroneous.

5-62-10. Falsifying certificates of authenticity or any similar written instrument. -- A person who, with intent to defraud, deceive or injure another, makes, utters or issues a certificate of authenticity or any similar written instrument for a work of fine art attesting to material facts which the work does not in fact possess is guilty of a misdemeanor.

5-62-11. Express warranties for multiples. --

(a) When an art merchant furnishes the name of the artist of a multiple, or otherwise furnishes information required by this title for any time period as to transactions including offers, sales or consignments, the provisions of section 62-9 of this chapter shall apply except that said section shall be deemed to include sales to art merchants. The existence of a reasonable basis in fact for information warranted shall not be a defense in an action to enforce such warranty, except in the case of photographs produced prior to nineteen hundred fifty, and multiples produced prior to nineteen hundred.

(b) The provisions of section four of section 62-9 of this chapter shall apply when an art merchant disclaims knowledge as to a multiple about which information is required by this title, provided that in addition, such disclaimer shall be ineffective unless clearly, specifically and categorically stated as to each item of information and contained in the physical context of other language setting forth the required information as to a specific multiple.

5-62-12. Construction. -- (a) The rights and liabilities created by this chapter shall be construed to be in addition to and not in substitution, exclusion or displacement of other rights and liabilities provided by law, including the law of principal and agent, except where such construction would, as a matter of law, be unreasonable.

(b) No art merchant who, as buyer, is excluded from obtaining the benefits of an express warranty under this chapter shall thereby be deprived of the benefits of any other provision of law.

SECTION 3. This act shall take effect upon passage.

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