Chapter ATCP 117
ART PRINTS AND MULTIPLE ART; SALES PRACTICES
ATCP 117.10 Prohibited acts.
ATCP 117.15 Required disclosure and warranty statements.
ATCP 117.20 Supplier's declaration.
Ch. ATCP 117 Note
Note: This chapter is adopted under authority of s.
100.20 (2), Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s.
100.20 (6),
100.26 (3) or
(6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s.
100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys' fees.
ATCP 117.01
ATCP 117.01 Application. This chapter applies to all sales of and offers to sell works of multiple art between an art supplier and an art dealer or between an art dealer and a buyer, if any portion of the transaction occurs in Wisconsin, including deliveries into or from Wisconsin and solicitations by mail or telephone where the solicitor or buyer is in Wisconsin.
ATCP 117.01 Note
Note: Sale solicitations by mail or telephone may also be subject to regulation under ch.
ATCP 127 and under ch.
423, Stats.
ATCP 117.01 History
History: Cr.
Register, August, 1990, No. 416, eff. 9-1-90.
ATCP 117.05(1)(a)
(a) A person who is in the business or represents himself or herself as being in the business of dealing, exclusively or non-exclusively, in the sale of multiple art.
ATCP 117.05(1)(b)
(b) An agent, officer, director, employee or other representative of a person listed in
par. (a).
ATCP 117.05(2)
(2) “Buyer" means any person, other than an art dealer, who buys multiple art from an art dealer.
ATCP 117.05(3)
(3) “Department" means the department of agriculture, trade and consumer protection.
ATCP 117.05(4)
(4) “Investment art" means a work of multiple art whose price exceeds $800.
ATCP 117.05(5)
(5) “Limited edition" means the total number that will be designated as part of any “limited edition" of a work of multiple art has been established, in a manner that binds all further production, by a person who can control production of the limited edition. The total number designated as being within the “limited edition" shall consist of every original and copy of the work which is identified or will be identified as being part of a “limited edition", including any original or copy:
ATCP 117.05(5)(c)
(c) Designated as a proof, artist's copy, sample or part of a numbered or unnumbered series.
ATCP 117.05(6)
(6) “Mail" includes public or private mail or parcel service.
ATCP 117.05(7)
(7) “Market value" means the price at which a work of multiple art could be sold in a bona fide transaction for investment or asset preservation purposes to an expert utilizing generally accepted appraisal criteria and acting on behalf of a retail buyer. “Market value" excludes the bona fide retail value of framing and mounting.
ATCP 117.05(8)
(8) “Master" means the plate, stone, block, screen, mold, photographic negative or similar matrix containing the image used to produce a work of multiple art.
ATCP 117.05(9)
(9) “Multiple art" means a print, sculpture, bas relief, etching or other work of visual art, excluding motion pictures or video, produced from a master in quantities of 2 or more.
ATCP 117.05(10)
(10) “Original" means a work of multiple art meeting each of the following conditions:
ATCP 117.05(10)(a)
(a) The work's master was either created by the artist alone or by the artist and by others acting under the artist's supervision and direction.
ATCP 117.05(10)(b)
(b) The work's master was created for the purpose of producing the work of multiple art.
ATCP 117.05(10)(c)
(c) The work was produced by or under the supervision and direction of the artist.
ATCP 117.05(11)
(11) “Photomechanical reproduction" means a work of multiple art whose production involved, at any stage, the use of photographic or electronic procedures.
ATCP 117.05(12)(a)1.
1. The amount charged by an art dealer for a single work of multiple art or for a series of related works of multiple art sold at the same time.
ATCP 117.05(12)(a)2.
2. The amount at which an art dealer represents that he or she will sell a single work of multiple art or a series of related works of multiple art. A representation of price includes any advertisement, posted price or oral statement made to a prospective buyer.
ATCP 117.05(12)(b)
(b) “Price" does not include the bona fide retail value of framing and mounting.
ATCP 117.05(13)
(13) “Sell" includes the consignment or exchange of a work of multiple art.
ATCP 117.05(14)
(14) “Signed" means the actual hand signature of the artist, affixed to a work of multiple art. “Signed" does not include any reproduction of the artist's signature or a signature made by any person other than the artist, whether authorized or not.
ATCP 117.05(15)
(15) “Supplier" means a person who sells a work of multiple art to an art dealer.
ATCP 117.05(16)
(16) “Telephone" includes any electronic transfer of data, including telex, cellular, facsimile and modem transmissions.
ATCP 117.05 History
History: Cr.
Register, August, 1990, No. 416, eff. 9-1-90.
ATCP 117.10(1)
(1)
Misrepresentation about multiple art. No art dealer may misrepresent any element of a work of multiple art. Unless otherwise proven, any representation not consistent with generally accepted trade literature or the general consensus of expert members of the art trade is a misrepresentation under this subsection. The art dealer has the burden of proving, by a preponderance of the evidence, the truth of any representation not based on these sources. Misrepresentations prohibited under this subsection include:
ATCP 117.10(1)(a)
(a) Misrepresenting a non-original work of multiple art as an original.
ATCP 117.10(1)(b)
(b) Failing to disclose as part of any representations concerning a photomechanical reproduction that photographic or electronic procedures were used in the work's production, if:
ATCP 117.10(1)(b)2.
2. Any representation of the photomechanical reproduction includes a term such as “lithography", “etching", “silkscreening",“serigraphy", “woodcutting" or “engraving", which is used in a manner implying the work was created by a classical means of production.
ATCP 117.10(1)(c)
(c) Selling or offering to sell a work of multiple art that appears to be signed by the artist, but is not.
ATCP 117.10 Note
Note: This paragraph does not prohibit the sale of works where the artist's signature was affixed to the master and is printed in the work. See s.
ATCP 117.05 (14) for the definition of a “signed" work.
ATCP 117.10(1)(d)
(d) Selling or offering to sell a work of multiple art exhibiting a numerical or other code that states or implies the work is part of any limited edition, such as 23/200, A.P., E.A. or H.C., if the work is not part of a limited edition.
ATCP 117.10 Note
Note: “A.P." is used to designate “artist's proofs". “E.A.", or “edition artiste", has the same meaning, while “H.C." means “hors de commerce", which was generally used to denote prints the artist retained or the artist's agent carried as representative samples.
ATCP 117.10(1)(e)1.1. Any misrepresentation regarding an element of a work of multiple art, including:
ATCP 117.10(1)(e)1.c.
c. The master from which the work was created and whether the master has been effaced or destroyed.
ATCP 117.10(1)(e)1.e.
e. The means, date, manner and circumstances of the work's or the master's production, including the involvement of the artist and the artist's estate, pupils or representatives.
ATCP 117.10(1)(e)2.
2. Any misrepresentation regarding the availability of information about a work of multiple art from normal trade sources.
ATCP 117.10(1)(e)3.
3. This paragraph applies to the supplier's declaration, the disclosure and warranty statement and any other representation regarding a work of multiple art.
ATCP 117.10(1)(f)
(f) Any inaccuracy in a disclosure and warranty statement made under
s. ATCP 117.15 or a supplier's declaration under
s. ATCP 117.20 and any representation inconsistent with those made in the statement or declaration. An art dealer who states on a disclosure and warranty statement that an item of information is “unknown", when the art dealer actually knows the information or when the item could be determined either from generally accepted trade literature or from the general consensus of expert members of the art trade, has made a misrepresentation prohibited under this paragraph.
ATCP 117.10(2)
(2) Misrepresentations about the market value of a work of multiple art. No art dealer may misrepresent the market value of a work of multiple art. If a work's represented market value exceeds its actual market value by 30% or more, calculated as of the date the representation is made, the work shall conclusively be found to have been misrepresented under this subsection. The art dealer's price of a work of multiple art is a representation of market value if, in conjunction with an offer to sell or sale of the work to a buyer, the dealer also makes:
ATCP 117.10(2)(a)
(a) Representations that state or imply the work's market, appraisal, replacement, resale, insurance, charitable donation or other monetary value equals or exceeds its price.
ATCP 117.10(2)(b)
(b) Representations about another work's market value or price in a context that states or implies the work being sold has a market value equal to or exceeding its price or has investment or asset preservation potential.
ATCP 117.10(2)(c)
(c) Representations concerning the existing or potential public prominence of the work or the artist in a context that states or implies the work has investment or asset preservation potential.
ATCP 117.10(2)(d)
(d) Other references to the work or the artist in a context that states or implies the work has investment or asset preservation potential.
ATCP 117.10(3)
(3) Misrepresentations about disclosure and warranty statements and supplier's declarations. No art dealer may misrepresent to a prospective buyer or buyer the purpose of a disclosure and warranty statement required under
s. ATCP 117.15 or a supplier's declaration under
s. ATCP 117.20.
ATCP 117.10(4)
(4) Records. No art dealer or supplier may falsify any record required to be retained under this rule or misrepresent its status or existence. No art dealer or supplier may refuse the department access to inspect and copy any record required under this rule.
ATCP 117.10 History
History: Cr.
Register, August, 1990, No. 416, eff. 9-1-90.
ATCP 117.15
ATCP 117.15 Required disclosure and warranty statements. ATCP 117.15(1)(a)(a) Before receiving any payment for the sale of a work of investment art, an art dealer shall provide the prospective buyer with a completed disclosure and warranty statement specified in
sub. (2) and obtain the buyer's signature on the statement. If the art dealer sells a work of investment art by telephone or mail, a completed copy of the disclosure and warranty statement shall be in the prospective buyer's possession before the art dealer requests payment.
ATCP 117.15(1)(b)
(b) Each disclosure and warranty statement required under this section shall be completely and accurately filled out, unless the art dealer affirms in writing on the statement that a particular item of information is unknown to the dealer and cannot be determined from generally accepted trade literature or the general consensus of expert members of the art trade.
ATCP 117.15(1)(c)
(c) Each disclosure and warranty statement shall be printed in no less than 10-point type.
ATCP 117.15(2)
(2) Disclosure and warranty forms. Each art dealer selling investment art shall use the following disclosure and warranty form:
“INVESTMENT ART DISCLOSURE AND
WARRANTY STATEMENT FULL WARRANTY
The state of Wisconsin requires this form for the sale of all works of multiple art priced over $800 (not including the bona fide retail value of framing and mounting). These sales are regulated by the Department of Agriculture, Trade and Consumer Protection, P.O. Box 8911, Madison, Wisconsin 53708.
Chapter ATCP 117, Wis. Adm. Code, creates certain rights in the buyer if an art dealer misrepresents such a work or fails properly to complete and provide you with this form. Section
100.20, Wis. Stats., lists specific penalties and remedies for noncompliance.
