Laws Governing Sale of Art - Art Defined

§ 686.501. Definitions; ss. 686.501-686.506

As used in ss. 686.501- 686.506:

(1)     "Art" means a painting, sculpture, drawing, work of graphic art, pottery, weaving, batik, macrame, quilt, print, photograph, or craft work executed in materials including, but not limited to, clay, textile, paper, fiber, wood, tile, metal, plastic, or glass. The term shall also include a rare map which is offered as a limited edition or a map 80 years old or older; or a rare document or rare print which includes, but is not limited to, a print, engraving, etching, woodcut, lithograph, or serigraph which is offered as a limited edition, or one 80 years old or older.
(2)     "Artist" means the creator of a work of art or, if she or he is deceased, the artist's heirs or personal representative.
(3)     "Art dealer" means a person engaged in the business of selling works of art, a person who is a consignee of a work of art, or a person who, by occupation, holds herself or himself out as having knowledge or skill peculiar to works of art or rare documents or prints, or to whom such knowledge or skill may be attributed by her or his employment of an agent or broker or other intermediary who, by occupation, holds herself or himself out as having such knowledge or skill. The term "art dealer" includes an auctioneer who sells works of art, rare maps, rare documents, or rare prints at public auction as well as the auctioneer's consignor or principal. The term "art dealer" does not include a cooperative which is totally owned by artist members.
(4)     "Creditor" means a "creditor" as defined in s. 671.201.
(5)     "Person" means an individual, partnership, corporation, or association.
(6)     "Author" or "authorship" refers to the creator or creation of a work of art or to the period, culture, source, or origin with which the creation of the work is identified in the description of the work.
(7)     "Counterfeit" means a work of art made or altered with intent to deceive in such a manner that it appears to have an authorship which it does not in fact possess. The term "counterfeit" includes any work of art made, altered, or copied in such a manner that it appears to have an authorship which it does not in fact possess, even though the work may not have been made with intent to deceive.
(8)     "Written instrument" means a written or printed agreement, bill of sale, or any other written or printed note or memorandum of the sale or exchange of a work of art by an art dealer, and includes a written or printed catalog or other prospectus of a forthcoming sale as well as any written or printed corrections or amendments thereof.
(9)     "Consignor" means an artist or any person, partnership, firm, association, or corporation which delivers a work of art to an art dealer for the purpose of sale, or exhibition and sale, to the public on a commission, fee, or other basis of compensation.
(10)     "Consignee" means an art dealer who receives and accepts a work of art from a consignor for the purpose of sale, or exhibition and sale, to the public on a commission, fee, or other basis of compensation.
Cite as Fla. Stat. s 686.501

History. s. 1, ch. 86-118; s. 19, ch. 91-110; s.743, ch. 97-102.

§ 686.502. Consignment relationship; notice; proceeds of sales held in trust; contract requirements

(1)     Whenever a consignor delivers, or causes to be delivered, a work of art to a consignee for the purpose of sale, or exhibition and sale, to the public on a commission, fee, or other basis of compensation, the delivery to and acceptance thereof by the art dealer is deemed to be "on consignment"; and, with respect to the work of art, such consignee shall thereafter be deemed to be the agent of such consignor.
(2)     Whenever a consignor delivers or causes to be delivered a work of art to a consignee, such consignor shall give notice to the public by affixing to such work of art a sign or tag which states that such work of art is being sold subject to a contract of consignment, or such consignee shall post a clear and conspicuous sign in the consignee's place of business giving notice that some works of art are being sold subject to a contract of consignment.
(3)     The proceeds of sale of a work of art shall be held in trust by the consignee for the benefit of the consignor. Such proceeds shall be applied first in payment of any amount due to the consignor.
(4)     Any provision of a contract or agreement whereby the consignor waives any of the provisions of this section is void.
Cite as Fla. Stat. s 686.502

History. s. 2, ch. 86-118.

§ 686.503. Contract provisions

Whenever a consignee accepts a work of art for the purpose of sale, or exhibition and sale, to the public on a commission, fee, or other basis of compensation, there shall be a written contract or agreement between the consignor and consignee which shall include, but not be limited to, the following provisions:

(1)     The proceeds of the sale of the work of art shall be delivered to the consignor at a schedule agreed upon by the consignor and consignee.
(2)     The consignee shall be responsible for the stated value of the work of art in the event of the loss of or damage to such work of art while it is in the possession of such consignee.
(3)     The work of art shall only be sold by the consignee for an amount at least equal to the amount agreed upon by the consignor in writing.
(4)     The work of art may be used or displayed by the consignee or others only with the prior written consent of the consignor and only if the artist is acknowledged in such use or display.
(5)     A work of art delivered to an art dealer by an artist for the purpose of exhibition or sale and the artist's share of the proceeds of the sale of the work by the dealer, whether to the dealer on his or her own account or to a third person, shall create a priority in favor of the artist over the claims, liens, or security interests of the creditors of the art dealer, notwithstanding any provisions of the Uniform Commercial Code.
Cite as Fla. Stat. s 686.503

History. s. 3, ch. 86-118; s.744, ch. 97-102.

§ 686.504. Warranties by art dealers; written statement; terminology

Any provision in any other law to the contrary notwithstanding:

(1)     When an art dealer, in selling or changing a work of art, furnishes to a buyer of such work who is not an art dealer a written instrument which, in describing the work, identifies it with any authorship, the description shall be presumed to be part of the basis of the transaction and shall create an express warranty of the authenticity of the authorship as of the date of the sale or exchange. The warranty shall not be negated or limited because the art dealer in the written instrument did not use formal words such as "warrant" or "guarantee," because the art dealer did not have a specific intention or authorization to make the warranty, or because any statement relevant to authorship is, reports to be, or is capable of being, merely the art dealer's opinion.
(2)     In construing the degree of authenticity of authorship warranted, due regard shall be given to the terminology used in describing the authorship and the meaning accorded to such terminology by the customs and usage of the trade at the time and in the locality where the sale or exchange took place. A written instrument delivered pursuant to a sale which took place in this state which, in describing the work, states, for example:
(a)     That the work is by a named author or has a named authorship without any other limiting words: means unequivocally that the work is by the named author or has the named authorship.
(b)     That the work is attributed to a named author: means a work of the period of the author, attributed to her or him, but not with certainty by her or him.
(c)     That the work is of a 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.
(d)     That the rare map, rare print, sculpture, drawing, or other work of art is of the authorship or from the period or date attributed to the work of art.
Cite as Fla. Stat. s 686.504

History. s. 4, ch. 86-118; s.745, ch. 97-102.

§ 686.505. Construction of language

Words relevant to the creation of an express warranty of authenticity of authorship of a work of art and words tending to negate or limit warranty shall be construed where reasonable as consistent with each other by parol or extrinsic evidence; negation or limitation is inoperative to the extent that the construction is unreasonable. Subject to the limitations hereinafter set forth, the construction shall be deemed unreasonable in any of the following cases:

(1)     The language tending to negate or limit the warranty is not conspicuous, written, and contained in a provision separate and apart from any language relevant to the creation of the warranty, in words which would clearly and specifically apprise the buyer that the seller assumes no risk, liability, or responsibility for the authenticity of the authorship of a work of art. Words of general disclaimer like "all warranties, express or implied, are excluded" are not sufficient to negate or limit express warranty of authenticity of the authorship of a work of art created under s. 686.504 or otherwise.
(2)     The work of art is proved to be a counterfeit, and this was not clearly indicated in the description of the work.
(3)     The work of art is unqualifiedly stated to be the work of a named author or authorship, or date or period or limited edition, and it is proved that, as of the date of sale or exchange, the statement was false, mistaken, or erroneous.
Cite as Fla. Stat. s 686.505

History. s. 5, ch. 86-118.

§ 686.506. Rights and liabilities, additional; merchant's liability

(1)     The rights and liabilities created by ss. 686.501-686.506 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 the construction would, as a matter of law, be unreasonable.
(2)     An art dealer who, as buyer, is excluded from obtaining the benefits of an express warranty under ss. 686.501-686.506 shall not be deprived of the benefits of any other provisions of law.
(3)     An art dealer whose warranty of authenticity of authorship was made in good faith shall not be liable for damages beyond the return of the purchase price which he or she received, together with any attorney's fees and costs incurred by reason of the art dealer's refusal to comply with ss. 686.501-686.506.
(4)     Any person who violates ss. 686.501-686.506 is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(5)     Nothing in ss. 686.501-686.506 shall apply to any work of art, when offered for sale or sold at wholesale or retail, framed or unframed, at a price of $100 or less.
(6)     Nothing in ss. 686.501-686.506 shall apply to works of art sold by artists who produce the same directly to a consumer, without the intervention of a wholesale or retail art dealer.
Cite as Fla. Stat. s 686.506

History. s. 6, ch. 86-118; s. 166, ch. 91-224; s.746, ch. 97-102.