USA – FLORIDA Law and Practice Contributed by: Diego R. Figueroa Rodríguez, DLA Piper
6. Sale of Art Objects Domestically and Abroad 6.1 Key Clauses in Art Sale Contracts The primary clauses in a basic art sale contract encompass the following: • description of the artwork – provide a detailed description, including the title, date, dimensions, medium, condition report and any unique features; • purchase price and payment schedule – outline the final price, any applicable discounts, deposit requirements, preferred payment methods and the timeline for payment; • transfer of title – specify the conditions under which ownership passes to the buyer, such as upon full payment; • authenticity and provenance – ensure the seller provides a warranty of authenticity and includes a detailed history of ownership; • representation and warranties – clearly define the representations made by both parties and any war - ranties or disclaimers; • IP rights – clearly state that the artist retains the copyright unless otherwise transferred in writing (note that moral rights cannot be transferred but can be waived); • shipping and risk of loss – determine who is responsible for shipping costs and risk during transportation; • insurance – specify who insures the artwork during transport and who will cover the insurance costs; and • governing law and dispute resolution – establish the legal jurisdiction and outline the procedures for resolving conflicts. Additional clauses may be necessary depending on the type of sale: • consignments – include details about the duration and termination of the consignment, the per - centage of commission, exclusivity agreements, expenses and promotional activities (refer to 1.1 Relevant Authorities and Legislation for consign - ments in Florida); • commissions – outline the scope of the commis - sion, the stages involved in the project, delivery
to the USA Practice Guide for further guidance on the applicable federal laws and regulations. 5.3 State Rights to Cultural Heritage The Division of Historical Resources (DHR) of the Florida Department of State is responsible for imple - menting and enforcing the Historical Resources Act (HRA) (Florida Statutes 267.021). The HRA establishes a network of public archaeology centres to preserve archaeological sites and artefacts and to regulate their exploration, excavation and collection. The DHR also designates state archaeological landmarks or zones that require express written consent from private owners and issues permits for field and underwater investigative activities, including surveys, exploration, excavation and salvage operations. These protections extend to unmarked human burials, prevalent in Flor - ida due to its extensive pre-Columbian history and the presence of numerous Native American tribes. If unmarked human burials are found on either public or private land, all potentially disruptive activity must cease immediately and the situation must be referred to state authorities for appropriate action. Any trading activity involving objects obtained in vio - lation of the HRA, such as selling, exchanging, pro - curing, counselling or transporting them, is strictly prohibited. It is likewise a violation of the HRA to cre - ate, reproduce, alter or forge any archaeological or historical object from a site whose value derives pri - marily from its antiquity or to falsely label, describe, offer for sale or exchange any object with the intent of misrepresenting it as a genuine archaeological or historical artefact. The DHR collaborates with federal, state and local law enforcement agencies to enforce these regulations. Violations related to unauthorised field investigations, unmarked human burials and illicit trade in objects are classified as misdemeanours and felonies. A significant instance demonstrating the application of these statutes and regulations is the 1998 discovery of the archaeological site known as the “Miami Cir - cle” during the construction of a luxury condominium complex, which led to subsequent legal and regula - tory proceedings.
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