Add §15.12, amd §§11.01, 15.11 & 15.15, Arts & Cul L
Relates to the authenticity, attribution and authorship of fine works of art; defines the term authenticator and stipulates that in a civil action regarding authenticity, the claimant must specify with particularity the facts and prove the elements by clear and convincing evidence; entitles the authenticator to recover reasonable attorneys' fees and expenses if he/she prevails.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5120
SPONSOR: Rosenthal TITLE OF BILL:
An act to amend the arts and cultural affairs law, in relation to opin-
ions concerning authenticity, attribution and authorship of works of
fine art
PURPOSE:
This bill enhances protections under the law for individuals who are
employed as art authenticator in the visual arts community.
SUMMARY OF SPECIFIC PROVISIONS:
Section one amends section 11.01 of the arts and cultural affairs law by
adding a new subdivision 23.
Section two amends section 15.11 of the arts and cultural affairs law,
as added by chapter 849 of the laws of 1984. Section three amends the
arts and cultural affairs law by adding a new section 15.12.
Section four amends subdivision 4 of section 15.15 of the arts and
cultural affairs law, as added by chapter 849 of the laws of 1984.
Section five amends subdivision five of section 15.15 of the arts and
cultural affairs law, as added by chapter 849 of the laws of 1984
Section six sets forth the effective date.
JUSTIFICATION:
In general, artwork is authenticated by a trained person through
documentation, stylistic inquiry, and/or scientific verification. No one
method is perfect as oftentimes authenticity is difficult to determine.
While each authentication method has its own drawbacks, the role of
authenticators as drivers of the art market cannot be overstated. Art
authenticators reduce the risk of counterfeits and imitations flooding
the art market that could potentially devalue the work of millions of
artists.
In recent years, the work of authenticators has come under pressure from
meritless lawsuits against those who render opinions in good faith. Such
defense of expensive and frivolous lawsuits has left many in the indus-
try reluctant to lend their expertise in authenticating art works.
This bill would clarify the role of art authenticators to ensure that
those who practice their profession, in good faith, would be afforded
protections under the law to ensure that only valid, verifiable claims
against authenticators are allowed to proceed in civil court.
LEGISLATIVE HISTORY:
2015-16: A.1018-A - Referred to Tourism, Parks, Arts and Sports Develop-
ment; S.1229-A - Passed Senate
2013-14: A.9016 - Referred to Tourism, Parks, Arts and Sports Develop-
ment; S.6794 - Committed to Rules
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This bill shall take effect on the sixtieth day after it shall have
become a law and shall apply to all opinions as to the authenticity,
attribution or authorship of a work of fine art provided to someone
other than the authenticator after such effective date.
STATE OF NEW YORK
________________________________________________________________________
5120
2017-2018 Regular Sessions
IN ASSEMBLY
February 6, 2017
___________
Introduced by M. of A. ROSENTHAL, OTIS, THIELE, SEAWRIGHT, BARRETT,
TITONE -- read once and referred to the Committee on Transportation
AN ACT to amend the arts and cultural affairs law, in relation to opin-
ions concerning authenticity, attribution and authorship of works of
fine art
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 11.01 of the arts and cultural affairs law is
2 amended by adding a new subdivision 23 to read as follows:
3 23. "Authenticator" as used in section 15.11, 15.12 and 15.15 of this
4 chapter shall mean, subject to the limitations in this subdivision, a
5 person or entity recognized in the visual arts community as having
6 expertise regarding the artist, work of fine art, or visual art multiple
7 with respect to whom such person or entity renders an opinion as to the
8 authenticity, attribution or authorship of a work of fine art or visual
9 art multiple, or a person or entity recognized in the visual arts or
10 scientific community as having expertise in uncovering facts that serve
11 as a direct basis, in whole or in part, for an opinion as to the authen-
12 ticity, attribution or authorship of a work of fine art or visual art
13 multiple. "Authenticator" shall include, but not be limited to, authors
14 of catalogues raisonne or other scholarly texts in which an opinion as
15 to the authenticity, attribution or authorship of a work of fine art or
16 visual art multiple is expressed or implied. "Authenticator" shall not
17 include a person or entity that has a financial interest in the work of
18 fine art or visual art multiple for which such opinion is rendered or in
19 any transaction concerning such work of fine art or visual art multiple
20 for which the opinion is rendered, other than to be compensated for
21 services such person or entity engaged in to provide an opinion as to
22 the authenticity, attribution or authorship of such work of fine art or
23 visual art multiple or to provide information on which such an opinion
24 is based in whole or in part.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00284-01-7
A. 5120 2
1 § 2. Section 15.11 of the arts and cultural affairs law, as added by
2 chapter 849 of the laws of 1984, is amended to read as follows:
3 § 15.11. Express warranties. Information provided pursuant to the
4 provisions of this article shall create an express warranty pursuant to
5 section 13.05 of this title. When such information is not supplied
6 because not applicable, this shall constitute an express warranty that
7 such required information is not applicable. This section shall not
8 apply to an authenticator's opinion or information concerning a visual
9 art multiple or work of fine art, as set forth in subdivision twenty-
10 three of section 11.01 of this chapter, section 15.12 of this article,
11 and subdivision four of section 15.15 of this article.
12 § 3. The arts and cultural affairs law is amended by adding a new
13 section 15.12 to read as follows:
14 § 15.12. Authentication of works of fine art and visual art multiples.
15 In any civil action brought against an authenticator that arises from or
16 relates to the authenticator's opinion or information concerning a visu-
17 al art multiple or work of fine art, the claimant shall specify with
18 particularity in the complaint facts sufficient to support each element
19 of the claim or claims asserted.
20 § 4. Subdivisions 4 and 5 of section 15.15 of the arts and cultural
21 affairs law, as added by chapter 849 of the laws of 1984, are amended to
22 read as follows:
23 4. (a) In any action to enforce any provision of this article, other
24 than a civil action brought against an authenticator that arises from or
25 relates to the authenticator's opinion or information concerning a visu-
26 al art multiple or work of fine art, the court may allow the prevailing
27 purchaser the costs of the action together with reasonable attorneys'
28 and expert witnesses' fees.
29 (b) In any civil action brought against an authenticator that arises
30 from or relates to the authenticator's opinion or information concerning
31 a visual art multiple or work of fine art, the court may allow the
32 prevailing authenticator the costs of the action together with reason-
33 able attorneys' and expert witnesses' fees, provided, however, that no
34 such costs or fees shall be granted pursuant to this section except upon
35 a written finding of good and just cause, which shall specify the
36 grounds thereof.
37 (c) In the event, however, the court determines that an action to
38 enforce any provision of this article was brought in bad faith it may
39 allow such expenses to the art merchant as it deems appropriate;
40 provided, however, that in any civil action brought against an authenti-
41 cator that arises from or relates to the authenticator's opinion or
42 information concerning a visual art multiple or work of fine art, no
43 such expenses shall be assessed or allowed against the authenticator.
44 5. An action to enforce any liability under this article, but not
45 including civil actions against authenticators, shall be brought within
46 the period prescribed for such actions by article two of the uniform
47 commercial code.
48 § 5. This act shall take effect on the sixtieth day after it shall
49 have become a law and shall apply to all opinions as to the authentici-
50 ty, attribution or authorship of a work of fine art or visual art multi-
51 ple provided to someone other than the authenticator after such effec-
52 tive date.
