Chapter 352: Authors' and Artists' Productions

Whenever any person, firm, association or corporation is the owner of any literary, dramatic or musical composition and the rights of the author pertaining thereto, and such composition has not been copyrighted, printed or published, or of any map, charter, engraving, cut, print, photograph or negative thereof, statue, statuary, model or design, which has not been copyrighted or offered for sale, it shall be unlawful for any other person to publish, produce, print, or sell or offer to sell the same without first obtaining the consent of the owner thereof.

Whoever violates RSA 352:1 shall be guilty of a misdemeanor.

In this subdivision:

I. "Art dealer" means a person, including an individual, partnership, firm, association, or corporation, engaged in the business of selling works of art, other than a person exclusively engaged in the business of selling goods at a public auction.

II. "Artist" means the creator of a work of art, or, if the artist is deceased, the artist's personal representative, heirs or legatees.

III. "On consignment" means delivered to an art dealer for the purpose of sale or exhibition, or both, to the public by the art dealer other than at a public auction.

IV. "Work of art" means an original artwork that is any of the following:

(a) A visual rendition including, but not limited to, a painting, drawing, sculpture, mosaic, or photograph.

(b) A work of calligraphy.

(c) A work of graphic art, including, but not limited to, an etching, lithograph, offset print, silk screen, or other work of similar materials.

(d) A craft work in materials, including, but not limited to, clay, textile, fiber, wood, metal, plastic, glass, or similar materials.

(e) A work in mixed media, including, but not limited to, a collage or a work consisting of any combination of the items listed in subparagraphs (a) through (d) of this paragraph.

If an art dealer accepts a work of art, on a fee, commission, or other compensation basis, on consignment from the artist who created the work of art, the following consequences shall attach:

I. The art dealer shall be, with respect to that work of art, the agent of the artist.

II. The work of art shall be trust property and the art dealer shall be a trustee for the benefit of the artist until the work of art is sold to a bona fide third party or returned to the artist.

III. The proceeds of the sale of the work of art shall be trust property and the art dealer shall be a trustee for the benefit of the artist until the amount due the artist from the sale is paid.

IV. The art dealer shall be strictly liable for the loss of, or damage to, the work of art while it is in the art dealer's possession or control. The value of the work of art shall be, for the purpose of this subdivision, the value established in the written contract between the artist and art dealer entered into pursuant to RSA 352:7.

I. If a work of art is trust property under RSA 352:4 when it is initially received by the art dealer, it shall remain trust property, notwithstanding the subsequent purchase of the work of art by the art dealer directly or indirectly for the art dealer's own account, until the purchase price specified pursuant to RSA 352:7 is paid in full to the artist.

II. If an art dealer resells a work of art that he purchased for his own account to a bona fide third party before the artist has been paid in full, the work of art shall cease to be trust property and the proceeds of the resale shall be trust funds in the possession or control of the art dealer for the benefit of the artist to the extent necessary to pay any balance still due to the artist. The trusteeship of the proceeds shall continue until the artist is paid in full under the contract entered into pursuant to RSA 352:7. A separate trust account for each artist shall not be required under this subdivision.

Notwithstanding any other provision of law, a work of art that is trust property or the artist's portion of the proceeds from the sale of such work under RSA 352:4 or 352:5 shall not be subject to the claims, liens, or security interests of the creditors of the art dealer.

I. An art dealer shall not accept a work of art, on a fee, commission, or other compensation basis, on consignment from the artist who created the work of art unless, prior to or at the time of acceptance, the art dealer enters into a written contract with the artist that contains all of the following:

(a) The value of the work of art and whether it may be sold;

(b) The time within which the proceeds of the sale are to be paid to the artist, if the work of art is sold;

(c) The minimum price for the sale of the work of art;

(d) The fee or percentage of the sale price that is to be paid to the art dealer for displaying or selling the work of art;

(e) An agreed upon date for removal of artwork and date for termination of contract.

II. If an art dealer violates this section, a court, at the request of the artist, may void the obligation of the artist to that art dealer or to a person to whom the obligation is transferred, other than a holder in due course.

An art dealer who accepts a work of art, on a fee, commission, or other compensation basis, on consignment from the artist who created the work of art, shall not use or display the work of art or a photograph of the work of art, or permit the use or display of the work of art or a photograph of the work of art, unless the following occur:

I. Notice is given to users or viewers that the work of art is the work of the artist;

II. The artist gives prior written consent to the particular use or display.

Any provision of a contract or agreement whereby the artist or art dealer waives any of the provisions of this subdivision shall be void.

Any art dealer who violates RSA 352:7 or 352:8 shall be liable to the artist for his reasonable attorney's fees plus:

I. One hundred dollars, plus the actual damages, if any, including the incidental and consequential damages, sustained by the artist by reason of the violation.

II. If an art dealer violates any provisions of this subdivision, the artist's obligation for compensation to the art dealer shall be voidable by the artist.

The provisions of this subdivision shall prevail over conflicting or inconsistent provisions of RSA 382-A, the Uniform Commercial Code.

This subdivision shall not apply to a written contract executed prior to January 1, 1989, unless:

I. The parties agree that this subdivision shall apply; or

II. The contract is extended or renewed on or after January 1, 1989.