Artist, Printmaker of Original Lithographs, Gallery Owner, Scholar & Author. Fernandina Beach, FL 904-277-3721



Authenticity

Lithographs, serigraphs, woodcuts, etchings, and the like, along with sculpture, paintings and other original creative mediums,  are original works of visual art that are wholly executed by hand by a living artist and excludes any mechanical and photomechanical processes. For those who are connoisseurs of what truly constitutes an original work of visual art created by hand by the artist, this is a no brainer.


Yet, in 1985 before I became an artist/printmaker of my own original works of visual art i.e., lithographs,  I believed, just like the vast majority of the public believes, that anything signed and numbered were copies ie., reproductions and that for anything to be considered an original it had to be a -one of a kind-. Of course those of us as artist/printmakers, who labor to create and print our original works of visual art, nothing could be further from the truth.


Therefore, as an artist/printmaker of over 12,000 original works of visual art ie., lithographs,  I will briefly document some factual observations on what constitutes original works of visual art such as lithographs. 


FIRST, lithographs are original works of visual art created by hand by the artist. 


This  factual perspective is confirmed by U.S. Custom`s May 2006 An Informed Compliance Publication titled Works of Art, Collector`s Pieces Antiques, and Other Cultural Property, which -in part- states: "The expression original engravings, prints and lithographs means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but excluding any mechanical or photomechanical process.


SOURCE: Works of Art, Collector`s Pieces, Antiques, and Other Cultural Property http://www.cbp.gov/document/publications/works-art-collectors-pieces-antiques-and-other-cultural-property


 

SECOND, reproductions versus original works of visual art ie., lithographs are -not- interchangeable, much less the same.


This factual perspective is confirmed in the 1991 The Fifth Edition of the Artist`s Handbook of Materials and Techniques by Ralph Mayer, the author wrote: "The major traditional graphic-arts processes of long standing and continued popularity are lithograph, etching, drypoint, woodcutting or wood engraving, aquatint, and soft-ground etching. ...The term `graphic arts` excludes all forms of mechanically reproduced works photographed or redrawn on plates; all processes in which the artist did not participate to his or her fullest capacity are reproductions."


SOURCE: Viking Adult; 5 Rev Upd edition (May 31, 1991), ISBN-10: 0670837016, ISBN-13: 978-0670837014 [This fifth edition has been prepared by Steven Sheehan, Director of the Ralph Mayer Center, Yale University School of Art.]


 

THIRD, reproductions cannot be attributed to an artist, living or dead.


This factual perspective is confirmed by U.S. Copyright Law 106 A, "The Rights of Attribution - shall not apply to any reproduction."


SOURCE: http://www.copyright.gov/title17/92chap1.html106a


 

Additionally, this perspective is confirmed by the Printing Industries of America, Inc. in their published Printing Trade Customs, which, in part, states: "6. PREPARATORY MATERIALS Working mechanical art, type, negatives, positives, flats, plates, and other items when supplied by the printer, shall remain his exclusive property unless otherwise agreed in writing."


SOURCE:http://www.brown.edu/Facilities/Graphic_Services/pdf/trade.pdf


In other words, if an artist, and/or a company, authorizes a printer and/or chromist to reproduce their work, the resulting reproductions cannot be attributed to the artist and/or company artist. That printer that reproduced those reproductions would own them. That printer would only be contractually obligated to give the artist the reproductions they paid for. The artist pays for 1,000 reproductions, they get a 1,000 reproductions. All of the reproduction overruns [potentially dozens or more], all plates, negatives, digital files and the like used to reproduce those reproductions, would be owned by the printer and if they chose to do so that printer [or future new owner] could reproduce more reproductions without the knowledge or permission of the artist.


U.S. COPYRIGHT LAW COMPILATIONS AND DERIVATIVE WORKS

Furthermore, under U.S. Copyright Law 103. -Subject matter of copyright: Compilations and derivative works-, it states: "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work."


SOURCE: http://www.copyright.gov/title17/92chap1.html103


 

So, the artist and/or the company owns the "material" ie., painting contributed by the artist and/or company, but not the derivative work a.k.a. reproductions. Those reproductions manufactured by the printer, may have been authorized by the artist and/or company but until they are paid for, the printer owns them. 


There is no free lunch.


FOURTH, "limited editions," are original works of visual art signed and numbered by the artist.


This factual perspective is confirmed under U.S. Copyright Law - 101. Definitions, where a -work of visual art- is defined as: "a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author."


SOURCE: http://www.copyright.gov/title17/92chap1.html101


 

FIFTH, under New York Civil Code 15.01 (2.) states: "Article fifteen of the New York arts and cultural affairs law provides for disclosure in writing of certain information concerning multiples of prints and photographs when sold for more than one hundred dollars ($100) - whether the multiple is a reproduction." The penalties for violation of New York Civil Code statutes under 15.15 may include but not limited to -refund-treble damages-court costs-expert witness fees-attorney fees- and not to mention potential civil fines.


SOURCE: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS &QUERYDATA=$$ACA15.01$$@TXACA015.01 &LIST=LAW &BROWSER=BROWSER &TOKEN=27067392 &TARGET=VIEW


 

SIXTH, under California Civil Code 1741-1745, it states: "California law provides for disclosure in writing of information concerning - whether the multiple is a reproduction [when] offered for sale or sold at wholesale or retail for one hundred dollars ($100) or more, exclusive of any frame."


SOURCE: http://codes.lp.findlaw.com/cacode/CIV/5/d3/4/1/1/s1738



SEVENTH and finally, under Oregon Revised Statutes Title 30. Education and Cultural Facilities, Chapter 359, Arts Commission and Arts Program; Art Transactions Fine Print Disclosure Statements, it states: "`Reproduction` means a copy of a fine print, but not a unique print made from the original plate." and "If the seller describes a fine print as a reproduction, the seller need not furnish any further information."


SOURCE: http://www.oregonlaws.org/ors/chapter/359




EIGHTH, under Minnesota Trade Regulations Secs 324.06 -324.10, it requires: "`Reproduction` means a copy of all original or a print by a commercial mechanical process - Seller who describes print as a `reproduction` need not furnish other information unless the print is part of a limited edition." The threshold for disclosure is $250 or above.


SOURCE: https://www.revisor.leg.state.mn.us/statutes/?id=324.06&year=2015




NINTH, under Maryland`s Commercial Law Title 14, Secs 501-505, it states: "Seller who describes a print as a `reproduction` need not furnish other information unless the print is part of a limited edition." The threshold for disclosure is $25 unframed, over $40 framed.


SOURCE: http://law.justia.com/codes/maryland/2010/commercial-law/title-14/subtitle-5/



TENTH, in the September 1998 Art World News trade magazine, the attorney Paul Winick (partner in the New York office of Thelen, Marrin, Johnson and Bridges), who specializes in intellectual property law, litigation and represents galleries, publishers and artists, wrote the article "Certificates of Authenticity: Dealer Liability."


In his article he explains the application of the Uniform Commercial Code as it applies to the "sales of most forms of visual art." The author wrote: "UCC express warranty arises from two sources: The description of the goods given by the seller, and the seller statements made to induce the sale. Those statements are said to become part of the `basis of the bargain` made between buyer and seller and, therefore, a basis for legal action if the description or statements turn out later to have been false."


The author also wrote: "Warranties need not depend on the sale document and can arise in statements made in advertisements or catalogues, so long as the buyer relied on those statements in formulating the bargain with the seller."[FN 3] and that "Warranties are applicable regardless of fault or intent. It is no defense that the seller did not mean to make a misstatement, or that he thought the misstatement to be true. If the goods (the artwork) do not conform to the promise made (the warranty), the seller is liable, whether or not he knew it to be true."


When it comes to disclaimers, Paul Winick wrote: "Disclaimers are not viewed favorably by courts and, unless there is some way to reconcile the disclaimer and the representation, the disclaimer is disregarded and the representation is given effect."


SOURCE: http://www.artworldnews.com/



Gary Arseneau
www.GaryArseneau.com


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