Art Law Report

New Sullivan & Worcester LLP Advisory on Fine Arts Consignment

Posted by Nicholas O'Donnell on September 26, 2014 at 6:58 AM

Sullivan & Worcester LLP's Art and Museum Law Group has published an important new client advisory about Massachusetts's fine arts consignment statute, G.L. c. 104A. With the recent decision in Plumb v. Casey et al. by the Supreme Judicial Court, it is more important than ever to understand what the law requires and provides. Certainly if a transaction has any connection to Massachusetts (whether through buyer, seller, agent, estate executor, etc.), or even if it is just in a state with a consignment statute whose courts may look to this opinion for guidance, we hope our readers will find the advisory helpful.

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Topics: Legislation, consignment, Commonwealth of Massachusetts, Supreme Judicial Court, SJC, Bankruptcy Court, Sullivan & Worcester LLP, consignor, G.L. c. 104A § 2, Art and Museum Law Group, G.L. c. 104A § 1, U.C.C.-1 statement, U.C.C. Secretary of State, Plumb v. Casey, Chapter 7, Uniform Commercial Code

Massachusetts High Court Clarifies: Written Agreement Not Required to Create Consignment of Fine Art and its Resulting Trust Duties

Posted by Nicholas O'Donnell on September 9, 2014 at 12:35 PM

The Supreme Judicial Court, the high court of the Commonwealth of Massachusetts, has answered a certified question from the Bankruptcy Court about the interpretation of Massachusetts’s fine art consignment law, G.L. c. 104A. The case, Eve Plumb et al. v. Debra Casey, SJC-11519, originated with an art dealer’s bankruptcy and the claim by the trustee in that bankruptcy that the artwork in the dealer’s possession belonged to that bankrupt dealer, not the artists. The SJC has interpreted the 2006 amendments to the law for the first time and clarified the roles of everyone involved. In full disclosure, I did some work for two of the artists (Dylan Stark and Robert Stark) at an early phase of the Bankruptcy Court proceedings. Eve Plumb, now an artist but also well known as the actress who played Jan Brady on The Brady Bunch, was another of the artist-claimants. In sum, once an artist delivers a work of art for sale for the purpose of exhibition or sale, it is a consignment, and the seller/consignee holds it in trust for the artist, regardless of the consignee’s own circumstances.

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Topics: Legislation, consignment, United States Supreme Court, The Brady Bunch, Jan Brady, Allyson Wynne, Commonwealth of Massachusetts, Debora Casey, Supreme Judicial Court, SJC, Bankruptcy, Wynne Fine Art Inc., Eve Plumb, Bankruptcy Court, consignor, G.L. c. 104A § 2, Kenneth Wynne III, G.L. c. 104A § 1, U.C.C.-1 statement, U.C.C. Secretary of State, Chatham, Chapter 7, Uniform Commercial Code, certified question, Dylan Stark, Robert Stark, Eve Plumb et al. v. Debra Casey, Jim Grace, SJC-11519, Arts and Business Council

Art Law This Week at the City Bar: “Copyright Fair Use: The Importance of Being Transformative” and “Hot Topics in Art Law 2014”

Posted by Nicholas O'Donnell on March 10, 2014 at 12:10 PM

Looking forward to two great art and law events this week at the New York City Bar, both at 42 West 44th Street. Hope to see many of you there!

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Topics: consignment, Cariou v. Prince, Judith A. Bresler, The Importance of Being Transformative, Copyright Fair Use, P.C., Judith Prowda, authentication, Kirkland & Ellis LLP, Dean R. Nicyper, Howard N. Spiegler, Authenticity Issues and Recent Developments, Stacy Lefkowitz, Has Transformative Use Gone Too Far?, Berkeley Center for Law and Technology, Google Books, The Law Applicable to Art Consignments, Garcia v. Google, Restitution, Dale Cendali, Pamela Samuelson, Copyright, Cowan Liebowitz & Latman, Visual Arts and the Law, Berkeley Law School, Judge Denny Chin, Sotheby’s Institute, Fair Use, Richard Dannay, Art Repatriation and Restitution

Reactions to Jenack Decision Are Surprisingly Limited So Far

Posted by Nicholas O'Donnell on December 19, 2013 at 4:34 AM

Since the Court of Appeals’ decision in William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Albert Rabizadeh was released on Tuesday (a decision that the New York Times noted was “first reported by the Art Law Report blog”), reactions have started to come in to the decision. Somewhat surprisingly, they have thus far been relatively few in number. On the whole, few seem exercised about the decision, and no one is gloating, probably because it restores the age-old status quo to which everyone had become accustomed.

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Topics: Legislation, consignment, New York General Obligations Law § 5-701(a)(6), Appellate Division, Auctions, New York Court of Appeals, Ivan Petrovich Khlebnikov, agency, Inc. v. Albert Rabizadeh, New York Supreme Court, Hicks v. Whitmore, Morris Cohon & Co. v. Russell, disclosure, Statute of Frauds, anonymous seller, identity, auction, William J. Jenack Estate Appraisers and Auctioneer

Jenack v. Rabidazeh Decision Reversed: Auction Sellers and Consignors Can Remain Anonymous

Posted by Nicholas O'Donnell on December 17, 2013 at 5:39 AM

The New York Court of Appeals reversed this morning the decision in Jenack v. Rabidazeh last fall by the Appellate Division of the New York Supreme Court that had held that an auctioneer must disclose the name of the actual owner who has consigned the work, to enforce that sale consistent with the state’s Statute of Frauds. The court concluded that “there exists sufficient documentation of a statutorily adequate writing” such that the Statute of Frauds was satisfied and the agreement is enforceable against Albert Rabizadeh, the winning auction bidder. The result is a sensible one both for stability in the market—the most important jurisdiction in the United States for that—as well as for anyone concerned about provenance and smuggling, as counterintuitive as that might initially appear. The decision is William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Albert Rabizadeh (still unpublished).

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Topics: Legislation, consignment, New York General Obligations Law § 5-701(a)(6), Appellate Division, Auctions, New York Court of Appeals, Ivan Petrovich Khlebnikov, agency, Inc. v. Albert Rabizadeh, New York Supreme Court, Hicks v. Whitmore, Morris Cohon & Co. v. Russell, disclosure, Statute of Frauds, anonymous seller, identity, auction, William J. Jenack Estate Appraisers and Auctioneer

Jenack Case Set for Oral Argument, Appeal Tests Obligation for Auction Houses in New York to Disclose Seller’s Name

Posted by Nicholas O'Donnell on July 22, 2013 at 4:56 AM

The New York Court of Appeals has set a hearing date on the appeal of the William J. Jenack action house of the Appellate Division’s ruling last year that an auctioneer must disclose the name of any owner who has consigned the work for sale, or a sale against a successful bidder cannot be enforced consistent with New York General Obligations law § 5-701 (the New York Statute of Frauds). The oral argument will be on November 13, 2013. The high court of New York elected to accept the appeal earlier this year, following coverage in the New York Times and elsewhere (in which the Art Law Report is quoted).

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Topics: Legislation, consignment, New York General Obligations Law § 5-701, Auctions, New York Court of Appeals, Ivan Petrovich Khlebnikov, Statute of Frauds, auction house, William J. Jenack, Hicks v. Wigmore

New York Court of Appeals to Address Jenack Decision Requiring Disclosure of Consignment Seller’s Identity to Enforce Sale Contract

Posted by Nicholas O'Donnell on January 18, 2013 at 4:15 AM

There is a new development in the decision last fall in which the Appellate Division of the New York Supreme Court ruled that an auctioneer must disclose the name of any owner who has consigned the work for sale, or a sale against a successful bidder cannot be enforced consistent with New York General Obligations law § 5-701, the New York Statute of Frauds. After the adverse decision, the William J. Jenack auction house petitioned the Court of Appeals for leave to appeal (in New York, as in many states, one can only appeal to the highest court with that court’s permission).

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Topics: consignment, New York General Obligations Law § 5-701, New York Court of Appeals, Statute of Frauds, Albert Rabizadeh, William J. Jenack

New Sullivan & Worcester LLP Client Advisory on Consignment Law in New York

Posted by Nicholas O'Donnell on November 1, 2012 at 9:55 AM

Please see our most recent client advisory from the Art & Museum Law Group at Sullivan & Worcester LLP. The advisory addresses recent statutory changes to and judicial interpretation of the law governing sales on consignment, including auctions in particular.

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Topics: consignment, Sullivan & Worcester LLP, Art & Museum Law Group, Client Advisory

Auction Consignors’ Names Must be Disclosed in New York: an Art Twist on a Very Old Law

Posted by Nicholas O'Donnell on October 26, 2012 at 11:46 AM

It is a busy fall for consignment law in New York. News has been making the rounds this month about a decision by the Appellate Division of the New York Supreme Court, New York’s intermediate appeals court. The Appellate Division ruled that an auctioneer must disclose the name of any owner who has consigned the work for sale, or a sale against a successful bidder cannot be enforced. The auction world is in an uproar, but the result actually derives from a version of a very old law called the Statute of Frauds about what has to be in writing for a contract to be enforceable, for reasons that have nothing to do with art or auctions.

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Topics: Legislation, consignment, New York General Obligations Law § 5-701, Ivan Petrovich Khlebnikov, Court of Appeals, Collections, Statute of Frauds, Albert Rabizadeh, William J. Jenack, auction

Change to New York Art Consignment Statute Adds Protections, Risks

Posted by Nicholas O'Donnell on September 27, 2012 at 9:46 AM

New York has passed an amendment to its Arts & Cultural Affairs law, N.Y. Arts & Cult. Aff. Law §12.01(2012), that is important for artist, galleries, and dealers alike. It affects the consignment relationship and creates critical new duties—and liabilities, for the dealer on consignment. Most importantly, it makes using any form of agreement drafted under the old law risky, particularly for the gallery or consignee. Signed by Governor Cuomo this week, the law takes effect November 6, 2012.

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Topics: Legislation, consignment, N.Y. Arts & Cult. Aff. Law §12.01, Governor Cuomo, Arts & Cultural Affairs law, attorneys' fees, Collections, breach of fiduciary duty, Trusts, Salander O'Reilly

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