Legal Guide to Selling Fine Art Prints
Disclaimer: This article is an informative guide pertaining to the legal doctrine discussed. DO NOT TAKE THIS ARTICLE AS SUBSTITUTE FOR LEGAL COUNSEL. Although any information on the current state of the law is thoroughly researched it is intended as INFORMATION, NOT advice. Secondly, this article is tailored to the 9th circuit (Montana, Idaho, Oregon, Washington, Alaska, Nevada, California, Arizona, and Hawaii). Although the principles of other circuits may be similar, the information given is specifically tailored to aforementioned states.
What differentiates a “fine art print” from a poster or other graphic reproduction? Typically, a fine art print is produced in a limited number, under the close supervision and direction of the artist. Further, art prints are traditionally produced using high quality materials. On the other hand, a poster or other “print” is a similar reproduction of an image and is [hopefully] produced pursuant to a licensing contract by the artist or their estate; they are mass produced with lower quality materials. This distinction is important, as fine art prints represent a collectible and potentially valuable piece of an artist’s body of work while other “prints” typically hold only decorative value.
The Dali print scandal nicely highlights this distinction. In the early 1980’s it came to light that the famed surrealist Salvador Dali had signed tens of thousands of blank sheets of paper which were sold to print publishers pursuant to licensing contracts. In turn, these publishers printed and sold thousands of Dali fine art prints, the creation of which had not been overseen whatsoever by the artist. These works were no more a piece of the artist’s body of work than a bargain bin poster. Predictably, those who bought into these glorified posters as investments reacted with a barrage of lawsuits. This scandal, and other similar discoveries of fraud in print sales, prompted many states to pass laws governing the sale of such fine art prints.
In California, such sales are governed by the Farr Act. This law requires dealers to furnish certificates of authenticity and provide information in advertising. The law also provides strict penalties for violations of such provisions. We will break down the requirements of this law below.
Who does this law apply to?
The Farr Act applies to all art dealers and consignees who offer or sell a fine art multiple in, into, or from the state of California. For example, the law would apply to a gallery in Los Angeles, but also cover a private dealer living in New York and selling to a client in San Francisco. The law defines a “fine art multiple” as any multiple sold for $100 or more (exclusive of frame).
An “art dealer” is defined as “a person who is in the business of dealing, exclusively or nonexclusively, in the fine art multiples,” or a “person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to these works.” The term “art dealer” includes an auctioneer who sells these works at public auction, but excludes the consignors of auctioneers or private dealers. The law also applies to artists selling their own multiples. However, artists themselves are not otherwise considered “art dealers.”
In summary, the law applies to: (1) fine art multiples; (2) sold in, from, or into California; (3) sold for $100 or more; and (4) sold by a person or business holding themselves out as knowledgeable about the work in question.
What does the law require?
The Farr Act requires that the gallery or dealer provide a certificate of authenticity (“COA”) with each piece sold, and disclose certain information in their advertising. The COA requirement is limited to situations in which the purchaser requests such a document. Thus, if a buyer does not request a COA in relation to a specific purchase, the seller is effectively off the hook. However, if requested, the certificate must be transmitted to the purchaser prior to payment for the work in question.
In regards to advertising, the information discussed in the section below also must be present in “close physical proximity” to where the multiple is described. Such disclosures are not necessary in general advertising or advertising which does not constitute an offer for a specific sale. Further, the law allows for a disclaimer to be issued in lieu of such disclosures (See “Disclaimer” section below).
Finally, the law requires art dealers post the following passage in a conspicuous place on a sign in their regular place of business: “California law provides for the disclosure in writing of certain information concerning prints, photographs, and sculpture casts. This information is available to you, and you may request to receive it prior to purchase.”
The following information must be supplied via a COA in all applicable transactions and included in all applicable advertising:
(1) The name of the artist;
(2) Whether the multiple was or was not signed by the artist. If the multiple was not signed by the artist, a statement of the source of the artist’s name on the multiple, such as whether the artist placed his signature on the master, whether his name was stamped or estate stamped on the multiple or on the master, or was from some other source or in some other manner placed on the multiple or on the master.
(3) A description of the medium or process, and the material used in producing the multiple. For example, whether the multiple was produced through the etching, engraving, lithographic, serigraphic, or a particular method or material used in photographic developing processes. If an established term cannot be employed accurately to describe the medium or process, a brief, clear description.
(4) If the multiple or the image on or in the master constitutes, as to prints and photographs, a photomechanical or photographic type of reproduction, or as to sculptures, a surmoulage or other form of reproduction of sculpture cases, of an image produced in a different medium, for a purpose other than the creation of the multiple being described, a statement of this information and the respective mediums.
(5) If paragraph (4) is applicable, and the multiple is not signed, a statement disclosing whether the artist authorized or approved in writing the multiple or the edition of which the multiple being described is one.
(6) If the artist was deceased at the time the master was made which produced the multiple, a statement of such.
(7) If the multiple is a “posthumous” multiple, that is, if the master was created during the life of the artist but the multiple was produced after the artist’s death, a statement of such.
(8) If the multiple was made from a master which produced a prior limited edition, or from a master which constitutes or was made from a reproduction of a prior multiple or the master which produced the prior limited edition, this shall be stated as shall the total number of multiples, including proofs, of all other editions produced from that master.
(9) As to multiples produced after 1949, the year, or approximate year, the multiple was produced. As to multiples produced prior to 1950, state the year, approximate year or period when the master was made which produced the multiple and when the particular multiple being described was produced. Such requirements are satisfied when the year stated is “approximately accurate.”
(10) Whether the edition is being offered as a limited edition, and if so: (i) the authorized maximum number of signed or numbered impressions, or both, in the edition; (ii) the authorized maximum number of unsigned or unnumbered impressions, or both, in the edition; (iii) the authorized maximum number of artist’s, publisher’s or other proofs, if any, outside of the regular edition; and (iv) the total size of the edition. If printed after January 1, 1983, this information serves as an express warranty that no additional multiples of the same image, including proofs, have been produced in this or in any other limited edition.
(11) Whether or not the master has been destroyed, effaced, altered, defaced, or canceled after the current edition.
Finally, the rules provide some leeway in regards to older editions. If the multiple was produced in the period from 1950-1983, the information required to be supplied need not include the information covered in sections (5) and (8). If the multiple was produced in the period from 1900 to 1949, the information required to be supplied need only consist of the information required by sections (1), (2), (3), and (9). If the multiple was produced before the year 1900, the information to be supplied need only consist of the information required by sections (1), (3), and (9).
Art dealers who fail to adhere to these guidelines may face stiff penalties. According to Cal. Civ. Code §1745 (a), an art dealer who fails to adhere to the aforementioned requirements, or provides untrue information, may be liable to the purchaser for the full price of the print plus interest. Furthermore, if the dealer willfully fails to provide a COA, or the information contained within is purposefully misleading, the dealer may be liable to the purchaser for three times the purchase price of the print. However, claims must be brought within one year of the discovery of the violation and no later than three years after the initial sale of the multiple.
Furthermore, if the required information is presented to the buyer properly, such information becomes a “basis for the bargain” and an “express warranty” on behalf of the seller. Practically, this means that if the information is false, the buyer may have a basis for recovery under this specific code section, and a breach of warranty or contract action. The basis for these actions is a bit too complicated to cover in this brief informational overview, but the short explanation is that a harmed buyer has multiple legal options on which to pursue their case.
In lieu of this required information, the written material or advertising may set forth the material contained in the following quoted passage, or the passage itself, if the art dealer then supplies the required information prior to or with delivery of the multiple. The nonobservance of the terms within the following passage shall constitute a violation of this title:
“California law provides for disclosure in writing of information concerning certain fine prints, photographs, and sculptures prior to effecting a sale of them. This law requires disclosure of such matters as the identity of the artist, the artist’s signature, the medium, whether the multiple is a reproduction, the time when the multiple was produced, use of the plate which produced the multiple, and the number of multiples in a ‘limited edition.’ If a prospective purchaser so requests, the information shall be transmitted to him or her prior to payment, or the placing of an order for a multiple. If payment is made by a purchaser prior to delivery of the multiple, this information will be supplied at the time of or prior to delivery, in which case the purchaser is entitled to a refund if, for reasons related to matter contained in such information, he or she returns the multiple in the condition in which received, within 30 days of receiving it. In addition, if after payment and delivery, it is ascertained that the information provided is incorrect, the purchaser may be entitled to certain remedies, including refund upon return of the multiple in the condition in which received.”
 Cal. Civ. Code §1740 et seq.
 Cal. Civ. Code §1741.
 Cal. Civ. Code §1741.
 Cal. Civ. Code §1742(e)
 Cal. Civ. Code §1742(a)
 Cal. Civ. Code §1740(b)
 Cal. Civ. Code §1740(b)
 Cal. Civ. Code §1745 (c)
 Cal. Civ. Code §1744.7
 Cal. Civ. Code §1742(b).