2019 New York Laws
ACA - Arts and Cultural Affairs
Title C - Transactions Involving Artists and Their Works
Article 12 - Artist-Art Merchant Relationships
12.01 - Artist-Art Merchant Relationships.

§ 12.01. Artist-art  merchant  relationships.  1.  Notwithstanding any
custom, practice or usage of the trade, any  provision  of  the  uniform
commercial  code  or any other law, statute, requirement or rule, or any
agreement, note, memorandum or writing to the contrary:
  (a) Whenever an artist or craftsperson, or a successor in interest  of
such  artist  or craftsperson, delivers or causes to be delivered a work
of fine art, craft or a print of such  artist's  or  craftsperson's  own
creation to an art merchant for the purpose of exhibition and/or sale on
a  commission,  fee  or other basis of compensation, the delivery to and
acceptance thereof by the art merchant establishes a consignor/consignee
relationship as between such artist or craftsperson, or the successor in
interest of such artist or craftsperson,  and  such  art  merchant  with
respect to the said work, and:
  (i)  such consignee shall thereafter be deemed to be the agent of such
consignor with respect to the said work;
  (ii) such work is trust property in the hands of the consignee for the
benefit of the consignor;
  (iii) any proceeds from the sale of such work are trust funds  in  the
hands of the consignee for the benefit of the consignor;
  (iv)  such  work  shall  remain  trust  property  notwithstanding  its
purchase by the consignee for his own account until the price is paid in
full to the consignor; provided that, if such work is resold to  a  bona
fide  third party before the consignor has been paid in full, the resale
proceeds are trust funds in the hands of the consignee for  the  benefit
of the consignor to the extent necessary to pay any balance still due to
the  consignor  and  such trusteeship shall continue until the fiduciary
obligation  of  the  consignee  with  respect  to  such  transaction  is
discharged in full; and
  (v)  such  trust property and trust funds shall be considered property
held in statutory trust, and no such trust property or trust funds shall
become the property of the consignee or be subject or subordinate to any
claims, liens or security interest of any kind or nature  whatsoever  of
the consignee's creditors.
  (b)  Waiver of any provision of this section is absolutely void except
that a consignor may lawfully waive the provisions of  clause  (iii)  of
paragraph (a) of this subdivision, if such waiver is clear, conspicuous,
in  writing,  in  words  which  clearly  and  specifically  apprise  the
consignor that the consignor is waiving rights under this  section  with
respect  to  proceeds  from  the  sale  of  the  consignor's  work,  and
subscribed by the consignor, provided:
  (i) no such waiver shall be  valid  with  respect  to  the  first  two
thousand five hundred dollars of gross proceeds of sales received in any
twelve-month  period  commencing  with the date of the execution of such
waiver;
  (ii) no such waiver shall be valid with respect to the proceeds  of  a
work initially received on consignment but subsequently purchased by the
consignee directly or indirectly for his own account; and
  (iii)  no  such  waiver  shall inure to the benefit of the consignee's
creditors in any manner which might be inconsistent with the consignor's
rights under this subdivision.
  (c) Proceeds from the sale of consigned works covered by this  section
shall  be  deemed  to be revenue from the sale of tangible goods and not
revenue from the provision of  services  to  the  consignor  or  others,
except that the provisions of this paragraph shall not apply to proceeds
from the sale of consigned works sold at public auction.
  2.  If  a  consignee  fails to treat the trust property or trust funds
identified in paragraph (a)  of  subdivision  one  of  this  section  in
accordance with the requirements of fiduciaries in section 11-1.6 of the

estates,  powers  and  trusts  law,  such  failure  shall  constitute  a
violation of this article and of section 11-1.6 of the  estates,  powers
and trusts law and shall be subject to the penalties provided therein.
  3.  Any  person  who has been injured by reason of a violation of this
article may bring an action in his  or  her  own  name  to  enjoin  such
unlawful  act,  to recover his or her actual damages, or both. The court
may award reasonable attorneys' fees, costs and expenses to a prevailing
plaintiff in any such action.
  4. Nothing in this section shall be construed to have any effect  upon
any  written  or  oral  contract  or  arrangement  in existence prior to
September first, nineteen hundred sixty-nine or  to  any  extensions  or
renewals  thereof  except  by  the mutual written consent of the parties
thereto.