ComicLink Spring Auction

[vodou]

Mortellaro doesn't seem to affect prices in HA archives imo. Stunning example. Separate vellum figures. Ugh.

[jqa3]

Does his or any artist transfer contract even hold up under US contract law? What I mean is can the original seller and first purchaser mutually agree to a contract that obligates future parties to those terms, without their agreement? Sounds ridiculous to me (layman). If a term of purchase is agreement to the original BWS contract...that fact definitely MUST be identified, in great detail. Yes??

 

Google search for "artist transfer" contract agreement returned this link.

Book it's taken from states California is the only state to enact a resale royalty act.

Also has related information.

[pinupcartoonguy]

From wikipedia (admitted not a true legal authority, but I'm too lazy to do real legal research right now):

 

The Resale Royalty Act came under legal scrutiny when, in October 2011, a group of artists and their heirs filed class action suits against auction houses Christie's and Sotheby's, and auction site eBay for failure of those brokers to pay royalties per the Resale Act.[8] In a decision on May 17, 2012 in the United States District Court for the Central District of California, Judge Jacqueline H. Nguyen dismissed the suits on the grounds that the Resale Royalty Act violated the Commerce Clause of the United States Constitution, and was therefore invalid as law. (Estate of Graham, et al, v. Sotheby’s Inc.)[9]

 

The Commerce Clause has been interpreted by the Supreme Court as not only affirmatively granting to Congress the power to regulate commerce among the states, but also, by negative implication, prohibiting the states from unjustifiably discriminating against or burdening the flow of interstate commerce.[9] A state regulation violates the Commerce clause where it “directly controls commerce occurring wholly outside the boundaries of a State.”[9]

 

Judge Nguyen found that where the Act regulates any transaction in which the seller resides in California, regardless of the location of the sale, buyer, or artist, the Resale Royalty Act “explicitly regulates applicable sales of fine art occurring wholly outside California.”[9] The Court cited the example of a California resident placing a painting by a New York artist for sale with Sotheby's in New York, where at the subsequent auction the painting is bought by a New York resident.[9] In this instance, the California law requires the New York company to withhold the amount of the royalty from the sale price, and either locate and pay the artist in New York or remit payment to the California Arts Council should the artist not be located. Further, the Act permits the New York artist to sue the New York Sotheby's under California law should the auction house fail to collect and remit the applicable royalty to the artist.[9]

 

An appeal was filed in the Ninth Circuit Court of Appeals on June 8, 2012, and is currently pending.[10]

[comix4fun]

What a mess.

 

 

[Day Stripper]

The BWS website has a copy of the artist transfer contract ("TAR"). It appears that all of the art that BWS sells is sold subject to the terms of the TAR.

 

http://www.barrywindsor-smith.com/galleria/tar.html

 

TAR Provisions No. 2 and 3 state:

 

2. RETRANSFER: If Purchaser in any way whatsoever sells, gives, or trades the Work, if it is inherited from Purchaser, or if a third party pays compensation for its destruction, Purchaser (or the representative of his estate) must within thirty (30) days:

•Pay Artist fifteen (15) % of the "gross art profit," if any, on the transfer; and

•Get the new owner to ratify this contract by signing a properly filled-out "Transfer Agreement and Record" (TAR); and

•Deliver the signed TAR to the Artist;

•"Gross art profit" for this contract means only: "Agreed value" on a TAR less the "agreed value" on the last prior TAR, or (if there hasn't been a prior resale) less the agreed value in Paragraph I of this contract.

•e. "Agreed value" to be filled in on each TAR shall be the actual sale price if the Work is sold for money or the fair market value at the time, if transferred any other way.

 

3.NONDELIVERY: If the TAR isn't delivered in thirty (30) days, Artist may compute "gross art profit" and Artist's fifteen (15) % as if it had, using the fair market value at the time of the transfer or at the time Artist discovers the transfer.

 

Provision No. 2 obligates the first purchaser to obtain a TAR from the subsequent purchaser (or recipient).

 

Legal Opinion (yes, I'm an attorney): Is the TAR enforceable?

It is most definitely enforceable (as any other contract would be) against the initial purchaser (Mr. A, who bought it directly from BWS).

 

Enforceable against subsequent buyers (e.g., Mr. A sells it to Mr. B)? This is a tougher question. The answer is, it depends.

 

If Mr. A sells the art in compliance with the TAR (either a copy is attached or verbal notice is provided), he will obtain a new TAR from Mr. B. This creates a new contract between BWS and Mr. B, which would be enforceable by BWS.

 

Think of the TAR as an easement on or transfer restriction on your real estate. If the easement/restriction was properly obtained and filed, it is enforceable against both the current owner, and against all future owners. If you're a later buyer, and you receive notice of the easement/restriction, (it usually shows up in the title search which your lawyer or bank conducts during the pre-sale process), it will be enforceable against you. If you buy the real estate with notice of the easement/restriction, you're bound by it. The easement permits others entry onto your property (that's why you can't tell the power or cable company to beat it) and a transfer restriction limits or conditions your ability to sell (though these are often voided by the courts if the restriction is unreasonable or discriminatory).

 

If the art is not purchased with notice of the TAR (no copy is attached, no verbal notice is provided, Mr. B doesn't sign a new TAR, and there's nowhere else to check (I'm unaware of a central TAR registration), it is probably not enforceable against a subsequent purchaser.

 

If the TAR is attached, Comic Link should disclose that fact and indicate that the new buyer will be required to execute a new TAR in favor of BWS.

 

So, if the TAR is attached, do you bid on the piece? Personally, no as it is not worth the hassle.

 

 

[Bronty]

I just lost all interest in BWS (and not just in art subject to that contract).

[Brian Peck]

Totally Horses h i t! If Clink has the artwork with the agreement on their site I can see someone suing them over the limitation of the auction.

[romitaman]

Just so people know....Tony Mortellaro was a BACKGROUND INKER ONLY on ASM!!!!

 

He never drew or inked a main figure i believe.

 

he was very solid as a background inker i will say.....(on his ASM background work from various issues between 92-132 i believe) and he deserves credit for that as his buildings and backgrounds were great!

 

but he shouldnt ever be thought of as the full inker on entire (ASM) pages.

 

mike

[Bronty]

nice artist in his own right as well

 

[AKA Rick]

I passed on the BWS cover years ago because it had the "artist transfer" contract agreement attached to it. This is where you agree to pay BWS and his future estate a percentage of the profits.

 

I hope any prospective buyer is familiar with the terms and that CL provides full disclosure if the transfer agreement is still in place.

 

It's a beautiful cover regardless.

 

Cheers!

N.

Does his or any artist transfer contract even hold up under US contract law? What I mean is can the original seller and first purchaser mutually agree to a contract that obligates future parties to those terms, without their agreement? Sounds ridiculous to me (layman). If a term of purchase is agreement to the original BWS contract...that fact definitely MUST be identified, in great detail. Yes??

 

This was banged around way, way back when BWS first introduced this, maybe 2002 or so? But I never saw any solid legal opinion as to whether it would (probably) hold up or not, legally.

 

In contract law there is a term, "privity of contract," meaning that the contract is between two entities. When a piece of art is sold to a third person, that "privity" no longer exists as between the artists and the third party buyer as it relates to an artists transfer contract. So where as the original buyer might have to cough up, I don't see how the third party buyer would be bound.

 

 

Under US contract law it fails. European courts have upheld these agreements.

Unless there's some basic change to US law I don't see how these agreements would ever be enforceable past the initial purchaser.

 

One thing I have wondered to myself, what if the piece sells for less? Can the buyer get a piece of that loss BACK from the artist. What is a gain? or a loss? Is it adjusted against inflation, against the S&P, against the time-value of money over that period of time?

 

In terms of raw dollars an owner may have gained some over the lifetime of ownership but lost his when rate of return against inflation is calculated.

 

I also wonder if the law can be circumvented by either selling the piece to a private party at a loss, then re-establishing the cost basis with a new owner, or even giving it as a gift, so the cost basis essentially becomes $0, how does that define profit and what is the % based off of if the contract was transferable which I'd speculate is hard to enforce and police.

[vodou]

I passed on the BWS cover years ago because it had the "artist transfer" contract agreement attached to it. This is where you agree to pay BWS and his future estate a percentage of the profits.

 

I hope any prospective buyer is familiar with the terms and that CL provides full disclosure if the transfer agreement is still in place.

 

It's a beautiful cover regardless.

 

Cheers!

N.

Does his or any artist transfer contract even hold up under US contract law? What I mean is can the original seller and first purchaser mutually agree to a contract that obligates future parties to those terms, without their agreement? Sounds ridiculous to me (layman). If a term of purchase is agreement to the original BWS contract...that fact definitely MUST be identified, in great detail. Yes??

 

This was banged around way, way back when BWS first introduced this, maybe 2002 or so? But I never saw any solid legal opinion as to whether it would (probably) hold up or not, legally.

 

In contract law there is a term, "privity of contract," meaning that the contract is between two entities. When a piece of art is sold to a third person, that "privity" no longer exists as between the artists and the third party buyer as it relates to an artists transfer contract. So where as the original buyer might have to cough up, I don't see how the third party buyer would be bound.

 

 

Under US contract law it fails. European courts have upheld these agreements.

Unless there's some basic change to US law I don't see how these agreements would ever be enforceable past the initial purchaser.

 

One thing I have wondered to myself, what if the piece sells for less? Can the buyer get a piece of that loss BACK from the artist. What is a gain? or a loss? Is it adjusted against inflation, against the S&P, against the time-value of money over that period of time?

 

In terms of raw dollars an owner may have gained some over the lifetime of ownership but lost his when rate of return against inflation is calculated.

 

I also wonder if the law can be circumvented by either selling the piece to a private party at a loss, then re-establishing the cost basis with a new owner, or even giving it as a gift, so the cost basis essentially becomes $0, how does that define profit and what is the % based off of if the contract was transferable which I'd speculate is hard to enforce and police.

What happens if it's donated to a non-profit? To the Library of Congress or the Smithsonian? Are extended aspects of the US Government also beholden to BWS terms too?

[Claudio]

I passed on the BWS cover years ago because it had the "artist transfer" contract agreement attached to it. This is where you agree to pay BWS and his future estate a percentage of the profits.

 

I hope any prospective buyer is familiar with the terms and that CL provides full disclosure if the transfer agreement is still in place.

 

It's a beautiful cover regardless.

 

Cheers!

N.

Does his or any artist transfer contract even hold up under US contract law? What I mean is can the original seller and first purchaser mutually agree to a contract that obligates future parties to those terms, without their agreement? Sounds ridiculous to me (layman). If a term of purchase is agreement to the original BWS contract...that fact definitely MUST be identified, in great detail. Yes??

 

This was banged around way, way back when BWS first introduced this, maybe 2002 or so? But I never saw any solid legal opinion as to whether it would (probably) hold up or not, legally.

 

In contract law there is a term, "privity of contract," meaning that the contract is between two entities. When a piece of art is sold to a third person, that "privity" no longer exists as between the artists and the third party buyer as it relates to an artists transfer contract. So where as the original buyer might have to cough up, I don't see how the third party buyer would be bound.

 

 

Under US contract law it fails. European courts have upheld these agreements.

Unless there's some basic change to US law I don't see how these agreements would ever be enforceable past the initial purchaser.

 

One thing I have wondered to myself, what if the piece sells for less? Can the buyer get a piece of that loss BACK from the artist. What is a gain? or a loss? Is it adjusted against inflation, against the S&P, against the time-value of money over that period of time?

 

In terms of raw dollars an owner may have gained some over the lifetime of ownership but lost his when rate of return against inflation is calculated.

 

I also wonder if the law can be circumvented by either selling the piece to a private party at a loss, then re-establishing the cost basis with a new owner, or even giving it as a gift, so the cost basis essentially becomes $0, how does that define profit and what is the % based off of if the contract was transferable which I'd speculate is hard to enforce and police.

What happens if it's donated to a non-profit? To the Library of Congress or the Smithsonian? Are extended aspects of the US Government also beholden to BWS terms too?

 

Read part "e"

"Agreed value" to be filled in on each TAR shall be the actual sale price if the Work is sold for money or the fair market value at the time, if transferred any other way.

 

 

[vodou]

I'll admit I couldn't stand reading it. But thanks for teasing that out. Answers the case of donations and non-cash transfers. But it doesn't address if I sell it to my neighbor for one cent. And he sells it right back to me for two cents. In that case, my understanding is BWS get nothing from the first sale, and 15% of one cent (the gain) on the second sale. Cost of postage sending all this garbage out to BWS far exceeds his 1/15th one cent "participation" in the gain heh heh.

 

I would imagine this TAR document was removed from the CLink example in question at some point as it moved around, and nobody is the wiser except the remover and those owners that came before. Hard to imagine there have been that many in just 10-15 years, but..??

 

Anybody contacted CLink for comment? Consignor and/or original BWS customer want to stand up and add color?

[Claudio]

But on the third sale, he would get 15% of a whole lot more gain.

 

Let's say you bought that piece for 10k directly from BWS. Then you sold it to your buddy for .01 and he sold it back to you for .02.

 

5 years down the road, sell it again and sell it for 15k, BWS just made an additional 1500 bucks that he wouldn't have gotten if you didn't play games. He made 15% of the 5k gain and another 15% off the 9999.99 gain from the phony sale

 

 

[rotembk]

Vodou, what you suggest is fraud; may be hard to prove, but still fraud. And if you go down that route, you might just as well simply outright breach the agreement by ignoring it.

[zhamlau]

I still dont get how this is actually legally binding. Have US federal courts weighed in on this type of contract?

[AKA Rick]

...plus lots of transactions are done unbeknownst to the public, so I could easily see the piece exchanging hands disregarding this agreement/contract. I'm fairly sure there's not a lot of updating of the status of ownership nor active enforcement of these contracts, it would be too time consuming to check up on and chase. It feels like a "wishful thinking" contract that may be written in legalese and is buttoned up, but difficult to manage.

[vodou]

What Are The Statute of Limitations For a Breach of Contract? Google gave me this link, no idea if it's good data or not: http://scholar.google.com/scholar?q=breach+of+contract+statute+of+limitations&hl=en&as_sdt=0&as_vis=1&oi=scholart&sa=X&ved=0ahUKEwjIkuWY8rXLAhVFQSYKHXAnDGgQgQMIGzAA

 

Assuming accuracy, would the "written" column apply here? If so, I'd imagine the clock resets every time the piece is sold? Which is the contractual state, Barry's or the buyer's (if different) - if it's a web site purchase?

 

So in the "what if the original purchases tore the stupid thing off the back and waited until the SOL ran out" scenario, THEN sold it (on day later, let's say), all TAP liability has disappeared at that time and BWS can go pound sand. No?

 

And before anybody gets worked up, I'm not suggesting fraud here or previous, just possible legal loopholes. All in the abstract. I own no BWS with or w/o TAP

[jjonahjameson1]

Barry is getting on in years, and I think he's in his mid to late sixties? So, not to sound morbid, but what happens when he passes on? Does the TAR still apply and how so?

[rotembk]

And before anybody gets worked up, I'm not suggesting fraud here or previous, just possible legal loopholes. All in the abstract. I own no BWS with or w/o TAP

 

I assume this was due to my previous reply so let me state that it was clear to me this was all a mental exercise for you. Just didn't want people to lose sight of the forest for all the tress.

 

By the way, I'm kinda surprised by some of the reactions; sure BWS tries to have his cake and eat it too, but it's his work, he's doing it in advance and he's not hiding anything. You (the generic you, not Vodou) don't like these terms? Just don't buy art from BWS; no one has a gun to your head and BWS is under no obligation to sell to you at terms you like.

 

The implications if the Clink painting is subject to a currently valid agreement and Clink doesn't disclose it in advance, on the other hand? A completely valid question.