Art Law by Ann Avery Andres, Esq.
The Artist's Right to Share in the Resale of Art
You live in California and purchased a painting by a local artist in 1989 in California. Now you have negotiated to sell the painting to a buyer who is paying $2,500.00 for it -- $500.00 more than you paid. After receiving the selling price, you may invest all of the $2,500.00 in the stock market? True or false?
False. California has a statute which regulates the resale of fine art. This statute requires the seller to retain 5% of the resale price and to remit it to the artist within 90 days of the sale. If the seller cannot locate the artist, the seller is required to transfer 5% of the resale price to the California Art Council within the same time frame. If the seller fails to make the transfer, 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. The prevailing party is entitled to attorney fees.
The artists from whom you purchased the painting died in 1991. Now you may invest the entire proceeds of sale in the stock market? True or false?
False. The right of the artist to receive 5% of the resale price of his/her work inures to his or her heirs or person inheriting under their Will or Trust until the 20th anniversary of the artist's death.
The resale price of the painting was only $1,850.00 -- $150.00 less than you paid for the painting originally. Now you may invest the entire proceeds in the stock market? True or false?
True. If the resale price is less than $1,000.00 or less than the price paid by the seller, there is no duty on the seller to pay the artist any portion of the resale price.
You anticipated the California resale law and when you purchased the painting in 1989, you had the artist sign a waiver of his/her rights to receive 5% of any resale. With this waiver in your file, you may now invest the entire sale price of $2,500.00 in the stock market? True or false?
False. The right of the artist to receive 5% of any resale may not be waived. The right to receive 5% may be only waived if there is a written contract providing the artist with MORE THAN 5% of any resale.
Hints: Keep a record of:the artist's address when purchasing
a work of fine art. Only buy fine art that you plan to keep forever in your
private collection. Include the 5% resale remit to the artist in your selling
© Ann Avery Andres, 1999
Ann Avery Andres practices law in Santa Ana,CA. She may be reached at 714.558.7775. Her address is 322 West Third Street, Santa Ana, CA 92701.
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Resource Library Editor's note: Laws regarding the content of this article may have changed since it was published in 1999. Please seek legal counsel for current information.
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