Joshua J. Kaufman © 20003

In the last several issues of Art Business News there have been a number of letters to the Editor decrying the current use or more specifically, misuse of Artists’ Proofs (APs). The letters lament the large number of artists’ proofs being produced. The historical background of APs is that APs were created to signify the artist’s final approval of a print after the long drawn out process used to create the graphics (stone lithographs, hand pulled screens, etchings, wood cuts, etc.), the APs were kept by the artist as their property. With the increased popularity of limited editions all that changed. Some artists and/or publishers who found that they had a successful image did not want to be limited to the initial size of the offering. Others simply wanted to have very large editions but did not alert want to consumers, to the actual size of the entire edition since it is conventional wisdom that the smaller the edition the more valuable the print. If a consumer can be convinced that they were buying a print from an edition of 250 rather than of 2,500, they believed they were getting an object of greater value. Artists’ proofs evolve from a few prints to sub-editions of dozens or scores The trend did not stop with APs. What we found occurring was a signed and numbered edition that would appear to be 250 prints in size (x/250). But there would be an edition of "Printer Proofs" of 250 and "Publisher Proofs" of 250. Perhaps there would also be a "Deluxe Edition" on better paper of 250 and an "International Edition" of 250 and of course the ever popular "Canvas Edition" of 250; and lets not forget the "Remark Edition" of 250 and the "Hand-Enhanced" edition of 250. My favorite of all of these editions is the HC edition (Hors de Commerce which in French means "Not for Sale" of course these editions are sold. Then came the advent of the time-limited edition which rather than having a fixed number of prints determine when the edition was initially created the edition was limited only by the number of prints ordered within a specific time-frame. In a number of instances these time-limited prints actually reached tens of thousands in number thereby stretching the definition of "limited" editions well beyond any reasonable definition of the term or what any normal consumer would have considered a "limited" edition print.

The average consumer would go in to a gallery or frame shop and see a print a few letters (e.g. "PP, AP, IE") next to it a fraction with the denominator being 250. The collector would generally believe that they were acquiring a print from an edition of 250. Perhaps the sophisticated consumer would know better or an inquisitive one might ask what the letters signified . If they were dealing with an honest gallery owner they might be informed that in fact the true size of the edition of "250" that they thought they were buying was actually an edition of 2,000 or 3,000 or 4,000. In more cases than not, the consumer did not know to ask, and if they did, many a dealer did not inform them of the true size of the edition.

As a result of wide scale abuses in the industry, 14 states have now passed print disclosure laws requiring that at the point-of-sale a Certificate of Authenticity be provided with each print. Since the 14 states include all the large markets and are scattered throughout the United States, if anyone sells on a national basis, they must provide a Certificate of Authenticity and they should conform to the requirements of the most stringent jurisdiction. If one sells through national ads, 800-numbers or a web-site they would be bound to sell their prints with Certificates of Authenticity or if they are publishers and sell to galleries or trade shows in jurisdictions that have these laws they would have to conform as well (a number of the jurisdictions also require Certificates of Authenticity for limited edition sculptures). An important point to note is that the Certificate of Authenticity must be provided to the consumer at the time of the sale. It is not sufficient to simply stick it in the box after the sale is completed or just have it attached to the back of the framed print when it is shipped to the customer or if it is a mail order sale or an internet sale, to simply have it in the packaging when the customer receives it. They must be provided to the customer before the sale is made or contemporaneously with the sale so that the consumer has the opportunity, before they pay for the print, to actually review the Certificate of Authenticity and make an informed decision as to whether or not they wish to purchase the print. I have seen almost no artists or art publishers web-sites that provide Certificate of Authenticities on line and viewable by the consumer prior to the point-of-sale; by not doing so, I believe almost universally, art-selling web-sites are in violation of these various consumer protection laws. Violating these laws provides exposure for the artist and/or the gallery and publisher (or whoever is selling the work) to penalties from the consumer who buys the print and in most instances to penalties from the state’s attorney office of the various states.

Once an artist or publisher commits to the facts in the Certificate of Authenticity they may not deviate, therefore if they state the size of an edition and its subparts and they sell-out they may not, in the future, re-issue that image in a different size and a different medium without being in violation of the law. There is no requirement that all the prints be sold or actually be published and/or even offered for sale. Say your COA states the edition size is 500 and the first printing is of 250 or you’re using the Iris process and print out 50 prints and the print doesn’t sell well there is no obligation which requires you to print out the remaining 250 or 450 prints on the other hand if you do hit the 500 number you may not print anymore prints or proofs.

Generally speaking, the different state laws require Certificates of Authenticity to provide the title of the work, the name of the artist, when the original art was created, the year in which it was printed, the year in which the print was released, the image size, the original medium, whether or not it was a posthumous, whether it was a re-strike, copyright holders should be listed as well. When it comes to the edition size, the total size of the editions must be stated, that includes all sub-editions of every size, medium and other variety. They are to be broken down by sub-edition sizes (e.g. how many in the AP series, how many in the canvas, how many in the international, how many in the deluxe, how many in the Hors de Commerce, etc.) and must state whether or not the signature of the artist on the prints is hand signed by the artist or if it has been signed by a mechanical device. Where the edition is printed is also required to be listed, what is the current status of the master used to create the prints, the method that the prints were created, including materials used must be stated. Certain states require that it state whether the paper is acid-free. The key is to ensure that the artist and publisher provide themselves with sufficient latitude in terms of size of the edition in the Certificates of Authenticity. It would be prudent to list or reserve the right to use the image on licensed products as well.

Though the statutes do not specifically deal with this issue, one that often comes up, is overruns. In many commercial printings of prints overruns are part of the process. Overruns, if they are not mentioned in the Certificate of Authenticity may not be sold, however, what they might be used for is replaced disclosed prints which are damaged. The overruns might be used to replace the damaged prints as long as the overrun print number matches exactly the damaged print number and the damaged print is removed from circulation or destroyed. Certain purists might argue that you shouldn’t use overruns for these purposes. As part of the value of the limited edition is that it is limited and with time prints do get lost, damaged and destroyed, thus, there is a natural attrition in the size of any limited edition and that is part of the basis of the value. Thereby using overruns to replenish depleted edition is inappropriate.

If you would like to have more information on the Certificate of Authenticity - see some samples as well as review the various state statutes, a monograph which I edited a number of years ago is being published by the Art Publisher’s Association and is available free to their members and may be purchased by the general public. For more information on the Fine Art Limited Edition Print Disclosure Laws Booklet, you can call the APA’s parent company, the Photo Marketing Association International at (517) 788-8100.

Fine Art prints laws, in a nutshell, are consumer protection statutes whose purpose is to allow the consumer, before they buy a print, to know exactly what they’re buying, the type of print, the paper it is made on, the media used to make, the true size of the edition and whether or not the artist had anything to do with the creation of the print as indicated by their signature.

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Joshua Kaufman, Esq. is a partner in the law firm of Venable, LLP. While he is based in Washington, DC, his practice is national in scope. He is one of the country’s foremost attorneys in the field of art and licensing law. He has published over 200 articles on various topics in the field. He is also an adjunct professor of law at American University Law School. A large number of his articles can be read and downloaded from, www.jjkaufman.com.