On March 29, 2012, U.S. District Judge Deborah Batts dismissed collector John Sobel’s complaint against celebrated fine art photographer William Eggleston. The lawsuit stemmed from allegations that Eggleston diluted the value of Sobel’s limited edition Eggleston prints when Eggleston created additional reprints derived from the same images, but of a different size, medium and print date.
This case construes, for the first time, whether the New York Arts and Cultural Affairs Law (“ACAL”) governing the sale of multiples permits subsequent reprints of previously produced limited edition works.
Between 2008 and 2011, Sobel purchased eight limited edition prints by Eggleston, each numbered on the bottom with a fraction. According to Sobel, the photographs’ “limited edition” status was a motivating factor in his decision to purchase the prints. Indeed, the 16×20” prints are believed to be created directly from the original negative, using a dye-transfer process, and have an aggregate fair market value of roughly $850,000.
In 2012, Eggleston entered into a consignment agreement with Christie’s, Inc. for the purpose of selling digital reprints—reprints that were identical to the eight limited edition photographs in Sobel’s collection but created using digital scans and an inkjet printer, and were significantly larger at 44” by 60” inches. These images ultimately fetched approximately $ 5.9 million at auction. Arguing that the fraction on the bottom of the works he purchased represented a maximum number of each work that could be printed, Sobel filed suit asserting a violation of § 11.01 of the ACAL which defines a “limited edition” and various state common law claims, including fraudulent misrepresentation. According to Sobel, the creation and sale of the reprints “substantially diminished the monetary value and uniqueness” of Sobel’s limited edition works. Eggleston moved to dismiss the complaint in its entirety.
The ACAL was generally enacted to encourage and foster artistic or other creative endeavors, by providing certain protections to artists and the people that buy and sell their works. Among its many provisions are certain disclosure requirements with respect to the sale of “limited edition” artwork. For example, where a work is reproduced in multiples, the seller must disclose information such as the name of the artist, whether the work was signed by the artist, the process by which the multiple was produced, whether the original artist was deceased at the time the multiple was created, and whether the multiple was made from a master or a prior reproduction. With respect to limited edition, ACAL § 15.03 requires a seller to indicate the size of the edition including “the number of multiples in the edition, and whether and how the multiple is numbered.” To protect buyers of limited edition prints, the number of multiples stated is presumed to be an express warranty, unless otherwise disclosed, specifically “that no additional numbered multiples of the same image, exclusive of proofs, have been produced.”
Rather than invoke a claim under Article 15 of the ACAL, Sobel sought relief pursuant §11.01, the ACAL’s defined terms section, which defines the meaning of the term “limited edition” work, but accords no cognizable right or remedy for recovery. Nonetheless, the Court observed that Sobel’s ACAL claim would similarly fail under the “plain and unambiguous” language of Article 15 and dismissed it accordingly, on the grounds that the ACAL’s express warranty provision only compels the disclosure of previously created reprints—which would consequently dilute a series of limited edition works—but “does not create a warranty barring future production of multiples.” In essence, Eggleston’s subsequent production of reprints was ratified by the very statute Sobel sought to enforce and could not give rise to a claim under the ACAL.
While the Court relied on the plain meaning of the ACAL in dismissing Sobel’s claim, Sobel requested the Court look at the legislative history, which it declined to do, relying on the plain meaning of the statute. The legislative record from 1981 explains that Article 15 was drafted to provide certain consumer safeguards and includes statements by then State Attorney General, Gustave Harrow, confirming that limited edition prints give rise to an assumption on the part of the purchaser “that the producing plate will not be utilized again and may be cancelled or destroyed after the edition is produced to ensure its limited character.”
Photographs, unlike lithographs, which are reproduced from plates that wear out and degrade after multiple printings, can be reprinted from a negative and now a digital file without any loss of image quality. Dealers and collectors have imposed limited editions on the fine art of photography in order to create rarity, and presumably higher prices. While ACAL was enacted to provide safeguards, the language relating to “limited editions” and how to account for photographic print editions that can be created in many sizes and with a variety of printing methods was never clear, leaving each artist to determine his or her own method. While the court’s decision may leave more uncertainty for collectors, it clarifies for the first time that a photographer can create new works using different methods of printing and size. What is most important is to provide as much information to the consumer about the size of the edition, the process of how it was created and whether prior editions have been created.
If you have any questions about this article, please contact an attorney in the CDAS Photography, Arts & Design Practice Group.