S T A T E O F N E W Y O R K
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4971
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
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Introduced by M. of A. BRODSKY -- read once and referred to the Commit-
tee on Tourism, Arts and Sports Development
AN ACT to amend the arts and cultural affairs law, in relation to resale
of royalties for artists
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 16 and section 16.01 of the arts and cultural
affairs law are renumbered article 17 and section 17.01 and a new arti-
cle 16 is added to read as follows:
ARTICLE 16
RESALE ROYALTIES FOR ARTISTS
SECTION 16.01. DEFINITIONS.
16.02. RESALE ROYALTY FOR ARTISTS.
16.03. EXCEPTIONS.
16.04. PAYMENT; ACTION FOR DAMAGES; EXEMPTION.
16.05. SEVERABILITY.
S 16.01. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "ARTIST" MEANS A PERSON WHO CREATES A WORK OF FINE ART.
2. "FINE ART" MEANS AN ORIGINAL PAINTING, SCULPTURE, OR DRAWING.
S 16.02. RESALE ROYALTY FOR ARTISTS. WHENEVER A WORK OF FINE ART IS
SOLD IN THIS STATE, THE SELLER OR HIS OR HER AGENT SHALL PAY TO THE
ARTIST OF SUCH WORK OF FINE ART OR TO SUCH ARTIST'S AGENT FIVE PERCENT
OF THE AMOUNT OF SUCH SALE. THE RIGHT OF THE ARTIST TO RECEIVE AN AMOUNT
EQUAL TO FIVE PERCENT OF THE AMOUNT OF SUCH SALE IS NOT TRANSFERABLE AND
MAY BE WAIVED ONLY BY AN INSTRUMENT IN WRITING PROVIDING FOR AN AMOUNT
IN EXCESS OF FIVE PERCENT OF THE AMOUNT OF SUCH SALE.
S 16.03. EXCEPTIONS. SECTION 16.02 OF THIS ARTICLE SHALL NOT APPLY TO
ANY OF THE FOLLOWING:
1. TO THE INITIAL SALE OF A WORK OF FINE ART WHERE LEGAL TITLE TO SUCH
WORK AT THE TIME OF SUCH INITIAL SALE IS VESTED IN THE ARTIST THEREOF;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08668-01-9
A. 4971 2
2. TO THE RESALE OF A WORK OF FINE ART FOR A GROSS SALES PRICE OF LESS
THAN ONE THOUSAND DOLLARS;
3. TO THE RESALE OF A WORK OF FINE ART AFTER THE DEATH OF THE ARTIST
THEREOF; OR
4. TO THE RESALE OF THE WORK OF FINE ART WHICH IS EXCHANGED FOR ONE OR
MORE WORKS OF FINE ART OR FOR A COMBINATION OF CASH, OTHER PROPERTY, AND
ONE OR MORE WORKS OF FINE ART WHERE THE FAIR MARKET VALUE OF THE PROPER-
TY EXCHANGED IS LESS THAN ONE THOUSAND DOLLARS.
S 16.04. PAYMENT; ACTION FOR DAMAGES; EXEMPTION. 1. WHEN A WORK OF
ART IS SOLD AT AUCTION OR BY A GALLERY, DEALER, BROKER, MUSEUM, OR OTHER
PERSON ACTING AS THE AGENT FOR THE SELLER, SUCH AGENT SHALL WITHHOLD
FIVE PERCENT OF THE AMOUNT OF THE SALE, LOCATE THE ARTIST, AND PAY THE
ARTIST.
2. IF THE SELLER OR HIS OR HER AGENT IS UNABLE TO LOCATE AND PAY THE
ARTIST WITHIN NINETY DAYS, AN AMOUNT EQUAL TO FIVE PERCENT OF THE AMOUNT
OF THE SALE SHALL BE TRANSFERRED TO THE COUNCIL ON THE ARTS.
3. IF A SELLER OR HIS OR HER AGENT FAILS TO PAY AN ARTIST THE AMOUNT
EQUAL TO FIVE PERCENT OF THE SALE OF A WORK OF FINE ART BY THE ARTIST OR
FAILS TO TRANSFER SUCH AMOUNT TO THE COUNCIL ON THE ARTS, THE ARTIST MAY
BRING AN ACTION FOR DAMAGES WITHIN THREE YEARS AFTER THE DATE OF SALE OR
ONE YEAR AFTER THE DISCOVERY OF THE SALE, WHICHEVER IS LONGER.
4. (A) IF THE COUNCIL IS UNABLE TO LOCATE THE ARTIST AND THE ARTIST OR
HIS OR HER ESTATE DOES NOT FILE A WRITTEN CLAIM FOR THE MONEY RECEIVED
BY THE COUNCIL WITHIN SEVEN YEARS OF THE DATE OF SALE OF THE WORK OF
FINE ART, THE RIGHT OF THE ARTIST TO A RESALE ROYALTY FOR SUCH WORK OF
FINE ART TERMINATES, AND SUCH MONEY SHALL BE TRANSFERRED TO THE OPERAT-
ING FUND OF THE COUNCIL TO FUND PROGRAMS OF THE COUNCIL.
(B) IF THE ARTIST OR HIS OR HER ESTATE DOES FILE A WRITTEN CLAIM FOR
THE MONEY RECEIVED BY THE COUNCIL WITHIN SEVEN YEARS OF THE DATE OF SALE
OF THE WORK OF FINE ART, THE COUNCIL, UPON APPROVAL OF SUCH WRITTEN
CLAIM, SHALL PAY OVER SUCH MONEYS HELD TO THE CREDIT OF SUCH ARTIST LESS
TEN PERCENT TO BE RETAINED BY THE COUNCIL AS THE COST OF ADMINISTERING
SUCH MONEYS HELD FOR SUCH ARTIST. SUCH RETAINED PERCENTAGE SHALL BE
TRANSFERRED TO THE OPERATING FUND OF THE COUNCIL TO FUND PROGRAMS OF THE
COUNCIL.
5. ANY AMOUNTS OF MONEY HELD BY ANY SELLER OR AGENT FOR THE PAYMENT OF
ARTISTS PURSUANT TO THIS SECTION SHALL BE EXEMPT FROM ATTACHMENT OR
EXECUTION OF JUDGMENT BY THE CREDITORS OF SUCH SELLER OR AGENT.
S 16.05. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE APPLI-
CATION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID FOR ANY
REASON, SUCH INVALIDITY SHALL NOT AFFECT ANY OTHER PROVISIONS OR APPLI-
CATIONS OF THIS ARTICLE WHICH CAN BE EFFECTED WITHOUT THE INVALID
PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS ARTICLE
ARE SEVERABLE.
S 2. The arts and cultural affairs law is amended by adding a new
section 3.17 to read as follows:
S 3.17. RESALE ROYALTIES IN ESCROW. 1. MONEYS RECEIVED BY THE COUNCIL
PURSUANT TO SECTION 16.04 OF THIS CHAPTER AS RESALE ROYALTIES DUE
ARTISTS SHALL BE SEPARATELY ACCOUNTED FOR AND DEPOSITED IN A SPECIAL
FUND WITH THE STATE COMPTROLLER, WHO SHALL DEPOSIT THE SAME AT INTEREST
AND CREDIT THE AVAILS THEREOF TO SUCH FUND. THE COUNCIL SHALL ATTEMPT TO
LOCATE ANY ARTIST FOR WHOM IT HOLDS MONEYS RECEIVED PURSUANT TO SAID
SECTION 16.04 OF THIS CHAPTER AND PAY THE PROCEEDS TO HIM OR HER; FOR
THIS PURPOSE THE COUNCIL SHALL MAKE EVERY REASONABLE EFFORT TO LOCATE
SUCH ARTIST, INCLUDING MAINTAINING A REGISTRY OF STATE ARTISTS AND
PUBLISHING THE EXISTENCE THEREOF.
A. 4971 3
2. IN THE EVENT THAT THE COUNCIL IS UNABLE TO LOCATE THE ARTIST, AND
SUCH ARTIST OR HIS OR HER ESTATE DOES NOT FILE A WRITTEN CLAIM FOR THE
MONEY RECEIVED BY THE COUNCIL WITHIN SEVEN YEARS OF THE DATE OF SALE OF
THE WORK OF FINE ART, OR IN THE EVENT THAT THE ARTIST OR HIS OR HER
ESTATE DOES FILE A WRITTEN CLAIM WITHIN SUCH SEVEN YEAR PERIOD, AND THE
COUNCIL RETAINS TEN PERCENT AS ADMINISTRATION COSTS, SUCH MONEYS SHALL
BE TRANSFERRED TO THE OPERATING FUND OF THE COUNCIL TO FUND PROGRAMS OF
THE COUNCIL AND THE ARTIST'S RIGHT THERETO SHALL BE DEEMED EXTINGUISHED.
3. ANY SUCH MONEYS TRANSFERRED TO THE COUNCIL PURSUANT TO SUBDIVISION
TWO OF THIS SECTION SHALL NOT BE CONSIDERED A REVENUE OF THE COUNCIL SO
AS TO OFFSET ANY APPROPRIATION, NOR SHALL ANY APPROPRIATION TO THE COUN-
CIL BE IN ANY WAY DIMINISHED THEREBY.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to all works of fine art created on,
before, or after such effective date.