Massachusetts H 1786: An Act relative to resale royalties for artists

Bill Text

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HOUSE DOCKET, NO. 459 FILED ON: 1/13/2017
HOUSE . . . . . . . . . . . . . . . No. 1786

The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Chris Walsh
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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act relative to resale royalties for artists.
_______________
PETITION OF:

NAME: DISTRICT/ADDRESS: DATE ADDED:
Chris Walsh 6th Middlesex 1/13/2017
Angelo J. Puppolo, Jr. 12th Hampden 10/19/2017

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HOUSE DOCKET, NO. 459 FILED ON: 1/13/2017
HOUSE . . . . . . . . . . . . . . . No. 1786
By Mr. Walsh of Framingham, a petition (accompanied by bill, House, No. 1786) of Chris Walsh
and Angelo J. Puppolo, Jr., relative to resale royalties for artists. Tourism, Arts and Cultural
Development.

The Commonwealth of Massachusetts

_______________
In the One Hundred and Ninetieth General Court
(2017-2018)
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An Act relative to resale royalties for artists.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:

1 SECTION 1. Chapter 104A of the General Laws is hereby amended by adding the
2 following section:-
3 Section 7. (a) For the purposes of this section, the following terms shall have the
4 following meanings, unless the context clearly requires otherwise:
5 “Art dealer”, a person who is actively and principally engaged in or conducting the
6 business of selling works of fine art for which business of such person validly holds a sales tax
7 permit.
8 “Artist”, a person who creates a work of fine art and who, at the time of resale, is a
9 citizen of the United States, or a resident of the commonwealth who has resided in the
10 commonwealth for a minimum of 2 years.
11 “Fine art”, an original painting, sculpture, or drawing, or an original work of art in glass.

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12 (b) (1) If a work of fine art is sold and the sale takes place in the commonwealth, the
13 seller or seller’s agent shall pay to the artist of such work of fine art or to the artist’s agent 5
14 percent of the amount of the sale. The right of the artist to receive an amount equal to 5 percent
15 of the amount of the sale may be waived only by a contract in writing providing for an amount in
16 excess of 5 percent of the amount of such sale. An artist may assign the right to collect the
17 royalty payment provided by this section to another individual or entity. However, the
18 assignment shall not have the effect of creating a waiver prohibited by this section.
19 (2) If a work of fine art is sold at an auction or by a gallery, dealer, broker, museum, or
20 other person acting as the agent for the seller, the agent shall withhold 5 percent of the amount of
21 the sale, locate the artist and pay the artist.
22 (3) If the seller or agent is unable to locate and pay the artist within 90 days, an amount
23 equal to 5 percent of the amount of the sale shall be transferred to the Massachusetts cultural
24 council.
25 (4) If a seller of the seller’s agent fails to pay the artist the amount equal to 5 percent of
26 the sale of a work of fine art by the artist or fails to transfer such amount to the Massachusetts
27 cultural council, the artist may bring an action for damages within 3 years after the date of sale or
28 1 year after the discovery of the sale, whichever is longer. The prevailing party in any action
29 brought pursuant to this clause shall be entitled to reasonable attorney fees, in an amount as
30 determined by the court.
31 (5) Money received by the Massachusetts cultural council pursuant to this section shall be
32 deposited in an account in a special deposit fund of the state treasury.

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33 (6) The Massachusetts cultural council shall attempt to locate any artist for whom money
34 is received pursuant to this section. If the Massachusetts cultural council is unable to locate the
35 artist and the artist does not file a written claim for the money received by the Massachusetts
36 cultural council within 7 years of the date of the sale of the work of fine art, the right of the artist
37 terminates and such money shall be transferred to the Massachusetts cultural council for use in
38 acquiring fine art for public use, and to support the preservation of existing and creation of new
39 public art in Boston and gateway cities across the commonwealth.
40 (7) Money to be paid to artists pursuant to this section shall be held by any seller or agent
41 and shall be exempt from enforcement of a money judgment by the creditors of the seller or
42 agent.
43 (8) Upon the death of an artist, the rights and duties established pursuant to this section
44 shall be transferred to his or her heirs, legatees or personal representative, until the 20th
45 anniversary of the death of the artist. The provisions of this subsection shall apply only with