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Proposed Clarifications and Amendments to California’s Autograph Law

It is easy to complain about a law, but harder to suggest changes. At the request of a legislative aide, I offer the following suggestions for changes to the law.

The test of the law is here.

My discussion of the issues the law presents can be found here in abbreviated form and in full.

1. Define “personality” in the first section [1739.7(a)(1)] of the law to mean “a famous person.”
The first section of the law reads, “‘Autographed’ means bearing the actual signature of a personality signed by that individual’s own hand.” Personality is not defined in the law, however, and the Legislative Counsel interprets the law “to mean **all autographed items** (emphasis added)” in the summary above the law’s text.

The plain English meaning of “personality,” quoting from Merriam-Webster’s dictionary, is “a famous person.” This would appear to be at odds with the Legislative Counsel’s claim that AB1570 applies to all autographed items. Clarifying this meaning would eliminate the need for COAs for items that are valuable for reasons other than that they are signed.

For example, many people sign their books as a mark of ownership. These autographs in almost every instance do not add to the value of the book; in fact, in many cases, they detract from the value, yet the books are technically autographed, and in Legislative Counsel’s interpretation, subject to the COA requirement.

Many books are sought after for their content and many paintings are valuable for their subject matter. The presence or absence of the author’s or artist’s signature does not have any material effect on the value of these items. Requiring a COA for such items requires considerable paperwork of dubious value. Is a consumer really served by a COA reading, “Folk painting of Abraham Lincoln by an unknown artist who has signed the work ‘Jones'”? The dealer selling the painting, by contrast, is burdened with seven years’ of record maintenance and the risk of 10 times damages for failure to provide a COA or a COA that does not comply with all the requirements of AB1570.

A further example where a COA does not serve its intended purpose is with historical documents that are valued for their content. Under the plain text of the law, a handwritten, but unsigned letter from a Civil War soldier describing the Battle of Gettysburg (a valuable item, to be sure) does not require a COA because it is not signed. A typed letter signed by a hardware store clerk on pretty, 19th century letterhead might be worth $10 and does require a COA, even though the person autographing it is lost to history.

Defining “personality” as a famous person would limit COAs to their intended target, people whose autograph is valuable in and of itself, whether on a letter, a baseball card, a photograph, or in a first edition book.

2. Define “having knowledge or skill peculiar to collectibles” in Section 1739.7(a)(4)(a) to mean a handwriting expert.
Most everyone who deals professionally in autographed material (collectibles, in the language of the law) has “knowledge” of autographs by dint of experience. Several attorneys, both for the ABAA and individual dealers, have offered opinions that the threshold for having “knowledge” is very low (“skill” related to autographs is harder to define).

I understand that the intent here may have been to cover people who have studied handwriting, inks and paper. Clarifying the law to apply to people with a higher level of expertise than “knowledge”, such as that of a handwriting expert, or those who have professional training in handwriting, would more accurately reflect the expressed intent of the legislators behind the law.

3. Amend the law to remove the requirement that COAs include the name and address of the source.
According to section 1739.7(b)(9)(b)(8), COAs must “Indicate whether the item was obtained or purchased from a third party. If so, indicate the name and address of this third party.” This might make sense for the first sale of manufactured collectibles. However, once items reach the secondary market, this clause becomes very problematic, as it requires the disclosure of the personal information of private individuals. This is both an invasion of privacy and a safety issue as the address of the seller can fall into the wrong hands or can be published on the Internet (on eBay for example), to prove the authenticity of an item.

I believe information about sources is of little value for most items on the secondary market; however, an intermediate position would be to require dealers to keep records of their sources so that if a customer seeks redress, the information can be disclosed in court. However, the source is usually of little value in such matters, as the seller is not an expert and cannot authenticate the item. Few people who had items signed in person can prove that to the level required by a court of law. Potentially involving innocent parties in lawsuits over collectibles seems unfair and few consumers would support it.

4. Amend the law to remove consignors to auctions from the definition of dealer.
This is the most problematic aspect of the law. According to 1739.7(a)(4)(a), a dealer to whom this bill applies includes “persons who are consignors … of auctioneers.” In most cases, people who consign to auctions are average consumers. This law requires them to provide COAs, which they have no expertise to issue, and to face significant civil penalties for the mere omission of the COA or for issuing a “false” COA, when the consignor relied on the auctioneer for authentication.

5. Amend the law to apply to auctioneers who are “principally” in the business of selling collectibles.
As written, in the words of the Legislative Counsel, AB 1570 applies to “all autographed items” and defines as a dealer ANY auctioneer who happens to sell anything autographed “at a public auction.” Technically, an auctioneer selling a used car with a signed receipt for a new tire in the glove compartment is covered by this law and must issue a COA. The receipt is a signed item and the auctioneer is by definition covered by the law if she sells **anything** signed. The law is really that broadly written, whatever the original intent. Amending the law to consider the realities of auctioneers who do not deal primarily in collectibles is important. Some of this would be ameliorated by limiting the scope of the COA requirement to famous people, as described in item 1 above.

6. Amend the law to exempt items covered by California Civil Code 1742-1744.9 (Art Multiples)
AB1570 adds a second COA requirement to art multiples that are signed by the artist. While not apparently contradictory, this is a duplicative requirement. Good laws should not add unnecessary burdens to businesses. The relationship between sections 1739.7 and 1742-1744.9 should be examined and streamlined.

7. Amend the law to encourage digital technology.
For a twenty-first century law, AB 1570 is very paper-based. There is no provision for digital COAs. One problem with paper COAs is that they can be moved from a real item to a fake one. Most signed items cannot be sufficiently described in writing to uniquely identify the item to the COA. Forgers can acquire legitimately signed items and take the COA and attach it to a similar forged item. The forger still has the legitimate book but can use the reputation of a legitimate dealer to sell the forged item by promoting the COA from the legitimate dealer.

The innocent, legitimate dealer, may have little ability to prove that the COA was not issued for the forged item. A truly brazen forger can buy the signed item, and then seek to return a forged item, threatening AB1570’s strong, ten-times civil damage clause. Most dealers do not have a way to definitively prove that the forged item is different from the real one that was sent.

It is possible to imagine technology being developed that would turn an image of the item into a unique digital “signature.” Such unique identifiers could be centrally stored and referenced by collectors, providing significantly greater security. Similar technology exists is other industries; it is a shame that this law did not open the door to real and permanent consumer protection. The encouragement of this kind of innovation could cause voluntary adoption of California’s law nationwide, further protecting consumers.