New York’s Art and Cultural Affairs Law offers some pretty extensive protections to purchasers of artist multiples, defined as any fine print, photograph, sculpture cast, collage, or similar art object produced in more than one copy. It’s important for dealers and buyers alike to understand just what those are in order to have greater negotiating power in transactions.
Take the following example. You’ve just purchased a print by one of your favorite photographers at an up-and-coming gallery in Brooklyn. Etched on the back of the photo there’s a fraction – 1/25. You ask your dealer what that means, and he tells you that it signifies that there are 25 copies of the same piece in the world. You ask him whether that means your work is any less valuable – to which he assures you it’s not. Since this is a multiple, you’re not really sure what your certificate of authenticity needs to state – you might normally insist on certain requirements in a similar transaction for a unique work, but your knowledge of the requirements of artist multiples is a little less clear. Your dealer doesn’t mention anything out of the ordinary, so you go on with the transaction as usual.
You hang onto your purchase until a dealer friend from California comes to dinner and asks if you’d be interested in selling the photograph. For what he’s willing to offer you, you agree – but then he asks whether you have a certificate of authenticity to accompany the work, and you show your friend the accompanying certificate. The deal is suddenly off – your friend says he can’t purchase the work without a certificate of authenticity because it’s against consumer protection laws: It’s missing key information required by both New York and California when selling artist multiples. You ask your friend what that means for you and this piece: Can you go back to the dealer and demand your money back? Is the dealer required to produce a certificate of authenticity?
New York Law Implies Special Protections for Artist Multiples
New York’s Art and Cultural Affairs Law is designed to protect consumers. Among its many protections is the express warranty provision, which states that when an art merchant, the dealer, provides a certificate of authenticity to a non-merchant, the buyer, he is certifying that the object he’s selling is exactly what he says it is – and if its found it’s not, he’s totally liable for the fraud.
The law goes one step further for artist multiples, adding further warranties and protections for works produced in more than one copy. New York created requirements for print and photographic artist multiples in 1981, and in 1990 added sculpture. There are only 10 other states that have statutes applying to artist multiples – and California is one of them.
What are the Legal Requirements When Selling Artist Multiples?
It can seem a little daunting, but there are many requirements for warranties when purchasing artist multiples. After all, there are an endless amount of factors (and combinations of factors) that will increase or decrease the value of a work.
First and foremost, a certificate of authenticity for a multiple must include the usual information: the name of the artist, whether his name appears on the artwork and was signed by him or her personally, and if not, whether his name was stamped or estate stamped onto the artwork.
Certifying the multiple becomes more complex when we begin to question why the artist produced the work in artist multiples, which is central to the authentication. A certificate of authenticity on a multiple should state whether the artist authorized or approved in writing the multiple or the edition of which the multiple is being sold. If the work is a posthumous multiple, meaning that the masterwork was created during the artist’s life but then multiplied after the artist’s death, this must be fully disclosed. The total number of artist multiples created must also be stated, as well as the year in which that particular multiple was produced. How its produced is also a factor – the medium or process of reproduction must be stated.
However, the law contemplates distinctions for works produced in certain time periods, eliminating certain requirements for older works of art. For example, a work produced before 1900 need not state whether the artist was deceased, whether the artist approved the multiple or any technical explanation of how the work was reproduced. As a result, it’s quite risky to purchase older works of art, since there’s no way to be sure precisely how many artist multiples, authorized or otherwise, could be floating around in the market.
Additionally, it must be stated whether the multiple is being offered as a limited edition and if so it must state:
- the authorized maximum number of signed and numbered multiples are in the edition, the authorized maximum number of unsigned or unnumbered multiples are in the edition
- the authorized maximum number of artist’s publisher’s or other proofs, if any, outside of the regular edition
- the total size of the edition
- whether or not the master has been destroyed, effaced, altered, defaced, or canceled after the current edition.
A dealer needs to be clear about the edition size especially because it’s often a contributing factor to the value of the work. For example, you may not be so inclined to purchase a $100,000 sculpture if you were to find out there are 20 copies floating around. Similarly, whether or not the multiple was produced after an artist passed based on a work he created during his lifetime will make a difference in the value of the work, since works are often appreciate posthumously.
What Are Your Options if the Requirements for Artist Multiples Aren’t Met?
If the artist multiple you purchased has any misrepresentations or is missing any of the required information, you are permitted by law to ask the merchant for a full refund plus 9% interest on the work. Since your friend won’t buy your piece because it doesn’t state all the information required by law, you are completely entitled to march back to the Brooklyn gallery and demand a full refund. If the gallerist refuses, you are entitled to seek legal action, and that’s when it can become exorbitantly expensive for the dealer: you can seek attorney’s fees and expert witness fees, and if it’s found that the seller made any misrepresentations, you are entitled to seek triple the amount of damages. This is a clear incentive for buyers to enforce their rights and sellers to settle claims.
The artist multiples law makes the standard for misrepresentation significantly easier to meet than it does for unique, one-of-a-kind works. In cases involving unique works, courts have held that if a seller had a “reasonable basis in fact” for its representations at the time of the sale, it has not breached its warranty – meaning that if the seller can prove that he had absolutely no idea he was misrepresenting the state of an artwork, he won’t be held liable for any damages suffered by the buyer.
In contrast, the “multiples” provisions expressly state that a dealer’s “reasonable basis in fact” is not a defense to a warranty claim. This means that a gallerist cannot defend a warranty claim by asserting that he “didn’t know” that the work was a multiple, or that he had to state when the multiple was made. In addition, experts are permitted to testify to any and all factors that would prove whether or not the work was warranted, including scientific testing even if the technology was developed well after the work was sold.
When it comes to purchasing artist multiples, many consider the practice a great way to supplement a collection, but it’s important to realize that you’re in a prime position for bargaining with the art dealer because the purchase of a multiple does have a considerable amount of risk for the dealer. Likewise, savvy dealers should become especially acquainted with the laws governing art multiples, since a faulty sale could spell serious consequences for dealers and gallerists.
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.