Source:  Oregon State Legislature Website

ART  TRANSACTIONS

(Consignments)

359.200 Definitions for ORS 359.200 to 359.255. As used in ORS 359.200 to 359.255:

(1) “Art dealer” means an individual, partnership, firm, association or corporation, other than a public auctioneer, that undertakes to sell a work of fine art created by another.

(2) “Artist” means the creator of a work of fine art or, if the artist is deceased, the artist’s personal representative, heirs or legatees.

(3) “Consignee” means an art dealer who receives and accepts a work of fine art from a consignor for the purpose of sale or exhibition, or both, to the public on a commission or fee or other basis of compensation.

(4) “Consignment” means delivery of a work of fine art to an art dealer for the purpose of sale or exhibition, or both, to the public by the art dealer at other than a public auction.

(5) “Consignor” means an artist or any person who delivers a work of fine art to an art dealer for the purpose of sale or exhibition, or both, to the public on a commission or fee or other basis of compensation.

(6) “Fine art” means:

(a) An original work of visual art such as a painting, sculpture, drawing, mosaic or photograph;

(b) A work of calligraphy;

(c) A work of original graphic art such as an etching, lithograph, offset print, silk screen or other work of similar nature;

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

(e) A work in mixed media such as a collage or any combination of the art media described in this subsection. [1981 c.410 §1; 1985 c.830 §1]

359.205 Delivery of art work to dealer as consignment; exception for direct sale work as trust property. (1) Notwithstanding any custom, practice or usage of the trade to the contrary, whenever an artist delivers or causes to be delivered a work of the artist’s own creation to an art dealer in this state for the purpose of exhibition or sale, or both, on a commission, fee or other basis of compensation, the delivery to and acceptance thereof by the art dealer constitutes a consignment unless the delivery to the art dealer is pursuant to an outright sale for which the artist receives or has received compensation for the work of fine art upon delivery.

(2) A work of fine art is trust property in the hands of the art dealer, who is trustee for the benefit of the artist until the work of fine art is sold to a bona fide third party.

(3) The proceeds of the sale of a work of fine art are trust property in the hands of the art dealer who is trustee for the benefit of the artist until the amount due the artist from the sale is paid. Nothing in this subsection requires a separate trust account for each artist.

(4) A work of fine art that is trust property when initially accepted by the art dealer remains trust property notwithstanding the subsequent purchase of the work of fine art by the art dealer directly or indirectly for the art dealer’s own account, until the purchase price is paid in full to the artist.

(5) The trust relationship described in this section imposes no duty greater than the duties described in ORS 359.200 to 359.210, 359.220, 359.225, 359.250 and 359.255 and does not give rise to any general trust or fiduciary relationship. [1981 c.410 §2; 1985 c.830 §2]

359.210 Effect of treating art work delivery as consignment; name of purchaser to be supplied on demand; remedy. (1) A consignment of a work of fine art has the following effect:

(a) The consignee, after the delivery of fine art, shall be considered to be the agent of the consignor for the purpose of the exhibition or sale, or both, of the work of fine art within this state.

(b) The work of fine art, or the artist’s portion of the proceeds from the sale of such work, shall not be subject to the claims of a creditor or consignee.

(c) A consignee is liable for the loss of or damage to the work of fine art while it is in the consignee’s possession where such loss or damage is caused by the failure of the consignee to use the highest degree of care. For the purpose of this subsection, the value of the work of fine art is the value established in a written agreement between the consignor and consignee prior to the loss or damage or, if no written agreement regarding the value of the work of fine art exists, the artist’s portion of the fair market value of the work of fine art.

(d) The consignee shall not be held liable for the loss of, or damage to the work of fine art if the artist fails to remove the work within a period of 30 days following the date agreed upon for removal of the work in the written contract between the artist and the consignee or, if no written agreement regarding a removal date exists, 30 days after notice to remove the work of fine art is sent by registered mail or by certified mail with return receipt to the artist at the artist’s last-known address.

(2) Upon written demand from the consignor, the consignee shall furnish the consignor with the name and address of the purchaser of the consignor’s work, and the date of purchase and the price paid for the work, for any sale totaling $100 or more.

(3) Failure to furnish the information specified under subsection (2) of this section by the consignor shall entitle the artist to obtain an injunction prohibiting such conduct and in addition, money damages in an amount equal to three times the artist’s portion of the retail value of the work. [1981 c.410 §3; 1985 c.830 §3; 1991 c.249 §28]

359.215 Consignment does not create rights in art dealer greater than those of artist. A consignment of a work of fine art does not convey title to or create an estate in the work or grant a right to possession superior to that of the consignor notwithstanding the power or authority of the consignee to transfer or convey to a third person all of the right, title and interest of the consignor in and to the work. [1981 c.410 §4]

 

359.220 Artist and art dealer to execute consignment contract; contents; consent to display. (1) An art dealer may accept a work of fine art, on a fee, commission or other compensation basis, on consignment from the artist who created the work of fine art only if prior to or at the time of acceptance the art dealer enters into a written contract with the artist establishing:

(a) The retail value of the work of fine art;

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

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

(d) The fee, commission or other compensation basis of the art dealer.

(2) An art dealer who accepts a work of fine art on a fee, commission or other compensation basis on consignment from the artist may use or display the work of fine art or a photograph of the work of fine art or permit the use or display of work or photograph only if:

(a) The art dealer gives notice to users or viewers that the work of fine art is the work of the artist; and

(b) The artist gives prior written consent to the particular use or display. [1981 c.410 §5; 1985 c.830 §4]

359.225 Payment of sale proceeds of consigned work; funds due artist not subject to claims of dealer’s creditors. The proceeds from a sale of a work of fine art on consignment shall be paid to the consignor within 30 days of receipt by the consignee unless the consignor expressly agrees otherwise in writing. If the sale of the work of fine art is on installment, the funds from the installment shall first be applied to pay any balance due the consignor on the sale, unless the consignor expressly agrees in writing that the proceeds on each installment shall be paid according to the percentage established by the consignment agreement. The artist’s portion of funds received on the sale of the work of fine art or on installment shall not be subject to the claims of a creditor of the consignee. [1981 c.410 §6; 1985 c.830 §5]

359.230 Contract provision waiving protections for artist is void. Any provision of a contract or agreement whereby the consignor waives any of the provisions of ORS 359.200 to 359.255 is void. [1981 c.410 §7]

359.235 ORS 359.200 to 359.240 not to affect prior transactions; effect of Uniform Commercial Code. (1) Nothing in ORS 359.200 to 359.255 is intended to affect any written or oral contract or agreement in existence prior to November 1, 1981, unless the parties agree by mutual written consent that ORS 359.200 to 359.255 shall apply or the contract is extended or renewed after November 1, 1981.

(2) ORS 359.200 to 359.255 is applicable notwithstanding the absence of, or conflict with, any written agreement, receipt, note or memorandum entered into on or after November 1, 1981, between the consignor and the consignee concerning any matter covered by ORS 359.200 to 359.255. ORS 359.200 to 359.255 controls over any conflicting provisions of the Uniform Commercial Code. [1981 c.410 §§8,10]

359.240 Art dealer prohibited from diverting sale proceeds; penalty. It shall be unlawful for a consignee willfully and knowingly to secrete, withhold or appropriate a work of fine art or the proceeds from sale thereof for the consignee’s own use or the use of any person other than the consignor, except pursuant to a bona fide sale or as otherwise consistent with the terms of consignment. Violation of this section is a Class C felony. [1981 c.410 §9]

359.250 Liability of art dealer for violation of ORS 359.220. (1) An art dealer violating ORS 359.220 is liable to the artist for $100 plus actual damages, including incidental damages sustained as a result of the violation.

(2) If an art dealer violates ORS 359.220, the artist’s obligation for compensation to the art dealer is voidable by the artist. [1985 c.830 §7]

359.255 Attorney fees. In any action under any provision of ORS 359.200 to 359.255, the court may award reasonable attorney fees and costs to the prevailing party. [1985 c.830 §8]