California Has Made Getting and Selling Autographs and Limited Edition Items More Confusing and Labor Intensive
In early September Governor Jerry Brown signed into law AB 1570, a consumer protection law aimed at fake signatures on sports memorabilia. The legislation has been the subject of a lot of chatter lately sparked by an impassioned blog post by Eureka Book Sellers. As usual, the discussion is full of hyperbole as to what the law does and does not do, and let me begin by flat-out saying it’s bad legislation that accomplishes little to solve the issue of fraud autographs.
Championed by celebrities like Mark Hamill (who we’ll point out make a decent chunk of change by selling autographs) the law does the following:
- Expands the definition of “collectible” to mean an autographed item for sale in or from California by a “dealer” to a consumer for five dollars or more
- “Dealer” is defined as a person who is mainly in the business of “selling or offering for sale collectibles in or from this state, exclusively or nonexclusively, or a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to collectibles, or to whom that knowledge or skill may be attributed by his or her employment of an agent or other intermediary that by his or her occupation holds himself or herself out as having that knowledge or skill. “Dealer” includes an auctioneer who sells collectibles at a public auction, and also includes persons who are consignors or representatives or agents of auctioneers. “Dealer” includes a person engaged in a mail order, telephone order, online, or cable television business for the sale of collectibles.”
- Whenever a dealer sells, or offers to sell, an autographed collectible in or from California, the dealer has to provide a certificate of authenticity at the time of sale. That certificate has some specifics that need to be met:
- Shall be in writing (does a computer print out count?)
- Signed by the dealer or authorized agent
- Feature the date of sale
- Must be in at least 10-point boldface type
- Contain the dealer’s legal name and street address
- The dealer must retain on file a copy of the certificate for no less than seven years
- It shall describe the collectible and specify the name of the personality who autographed it
- Specify the date of sale or be accompanied by a separate invoice with that information
- Contain a warranty
- Specify if the collectible is offered as a part of a limited edition and if so it has to say how it’s numbered and the size of any prior or anticipated edition. And if that’s not known, it should state that it’s unknown.
- Indicate if the dealer is bonded or otherwise insured to protect consumers against errors and omissions and if so, provide proof
- Indicate the last four digits of the dealer’s resale certificate number from the State Board of Equalization
- Indicate if the item was autographed in the presence of the dealer and if so the specific date, location, and name of the witness
- Indicate if the item was obtained or purchased from a third-party and if it was the name and address of the third-party
- Include a serial number that corresponds any identifying number printed on the collectible item, if any. That should also be on the sales receipt and if that receipt is printed then write the number on the receipt
- A dealer shall not present an item as a collectible if it was not autographed by the personality in his or her own hand
- You need to post a sign close to where your collectibles are that let consumers know you need to provide them with a certificate of authenticity
- Mail order dealers have some other things they need to do, especially if they advertise
- If you plan on selling autographs at conventions you need to displace a “specimen example of a certificate of authenticity”
- Consumers who don’t receive a certificate of authenticity with the above, or if it’s got false information, shall be able to receive damages equal to 10 times actual damages, plus court costs, reasonable attorney’s fees, interest, and expert witness fees. Plus the court can award additional damages
- Dealers in the state must have a valid resale certificate number from the State Board of Equalization
- A dealer may be surety bonded or otherwise insured for purposes of indemnification against errors and omissions
And there’s some things promoters need to do as well, such as warning any dealer about the above with specific language provided:
As a vendor at this collectibles trade show, you are a professional representative of this hobby. As a result, you will be required to follow the laws of this state, including laws regarding the sale and display of collectibles, as defined in Section 1739.7 of the Civil Code, forged and counterfeit collectibles and autographs, and mint and limited edition collectibles. If you do not obey the laws, you may be evicted from this trade show, be reported to law enforcement, and be held liable for a civil penalty of 10 times the amount of damages.
There are exemptions to the law as far as what a “dealer” is….
- “Dealers” don’t include licensed pawnbrokers
- An online marketplace that is not primarily in the business of selling, or offering for sale, collectibles, in or from California
- The personality who signs the memorabilia
Get all of that?
Lets begin with the failure of the law…
The exemptions are the first problem with the legislation. The fraud that exists with online sellers through eBay is rampant and though there’s no numbers as to how bad it is, the legislation begs individuals to move their business online solving nothing at all in reality. But, eBay’s lobbyists are strong and their money flows regularly to California politicians. Check out 2015 through 2016’s donations and I’m sure the company’s donation of $15,000 to Jerry Brown’s run for Governor had no impact at all (and $5,000 to his Attorney General race). In general, the company’s donations to California’s politicians has greatly increased in recent cycles. When it comes to rampant forgery online, California elected officials apparently don’t care.
The exemption of the personality who signs the memorabilia is also hypocritical. I’m not sure if I’d really call this a failure, but there’s irony in the fact the celebrities who have demanded certifications themselves don’t have to provide one. What’s good for the rest isn’t good for them. And, I guess they don’t stand by their autograph, and as a consumer I wouldn’t trust any I didn’t see them sign in person. Autopens do wonders.
Finally, there’s already protections for consumers about fake autographs, this legislation really creates a consumer right to a certificate of authenticity. There’s already laws to protect against forged signatures. In other words, it’s not needed. Those who break the law by selling fake autographs will now likely continue, just with a piece of paper. There’s no difference in practicality of what was and what is when it comes to fighting this issue. Consumers had a right to sue then. Consumers can now sue now for the same thing. What is needed is for celebrities to file lawsuits, not consumers, put the onus on them, but then again, they can’t be bothered by providing a piece of paper themselves for authenticity.
There’s also the weird…
The legislation goes into defining “limited edition.” A consumer can request proof that the films, electronic coding, molds, or plates used to create the collectible was destroyed after the edition is up. It also decides to delve into the debate on “mint condition” to mean an item that must never have been circulated, used, or worn, with no signs of aging, and otherwise free of creases, blemishes, or marks. There’s no use of “mint condition” in the legislation other than to define what it is.
What’s the actual impact to comic dealers and comic creators?
For creators, there’s little impact by the legislation. They fall under that personality exemption so they can continue to go about selling autographs directly.
For dealers, the impact is much greater. There’s the signage that will now had to be had if they’re selling autographed materials in their store or their booth at conventions. In reality, the legislation is worded so poorly it indicates everyone that sells collectibles needs the sign, but I don’t think that’s the actual intent or how it’ll be enforced. If you’re selling autographed items for $5 or more you’ll need to provide a certificate and keep it on file for seven years. Yay more paperwork! I’d also expect more lawsuits by individuals looking to make a good buck. The fact is anyone can sue anyone and there’ll be a nice business coming out of this legislation potentially. Dealers should also be aware of any autographed items they’re purchasing, such as from Diamond, in that they’ll now need to provide a proper certificate of authenticity. I know autographed items I’ve purchased through Diamond in the past have had one, but they didn’t comply with the above.
For consumers, this is a good thing in that, in theory, it should scare off some sellers of forged autographs. It also means you get to keep a certificate of authenticity somewhere, so more items for you too.
The up in the air…
Since this includes all autographed items this now includes greeting cards as mentioned in Eureka Book’s post, something that wasn’t intended, unless that item is less than $5. Then “agent or intermediary” that is defined under dealer isn’t defined as well.
The bigger impact is signings in stores. If a comic creator comes to a comic shop and then signs items before leaving, that may fall under the celebrity exception, but maybe not? If the shop is selling the item at a celebrity signing, like what happens in shops, is one needed?
The legislation is a failure of those who drafted and lobbied for it, but also a failure of those in the memorabilia industry for letting it get passed. This has been something that’s been lobbied for quite some time and went through the legislation process. Where was the comic industry speaking up about this when it was going through that? Where was our lobbying effort? We have a CBLDF, is it time for someone to look out for creators, stores, and consumers when it comes to matters beyond free speech?
The biggest reality is the legislation is passed and signed by the Governor.
What can you do?
You can still make your voice heard. Contact Governor Jerry Brown or contact elected officials in the State Senate and the State Assembly. Most importantly, pay attention at your state level to make sure you speak up before legislation like this is even passed.
The law takes effect in January.