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July 8th, 2014
New York Legislature Limits Sale of Antiques Containing Ivory
The New York legislature recently approved legislation prohibiting the sale of antiques containing ivory, except under very limited circumstances. The law is more restrictive than federal law governing the sale of ivory, and is expected to eliminate New York's central role in the $500 million national market for ivory goods.
The law adds a new section to New York's Environmental Conservation Law providing that "no person shall sell, offer for sale, purchase, trade, barter or distribute any ivory article or rhinoceros horn." The statute defines "ivory article" as "any item containing worked or raw ivory from any species of elephant or mammoth."
Exceptions. The law contains exceptions. Provided that the activity is not otherwise prohibited by federal law, the Commissioner of the New York Department of Environmental Conservation may issue licenses and permits for trade in ivory goods in the following situations:
- Certain Bona Fide Antiques. Under this exception, a license may be granted if an antique contains less than twenty percent ivory or rhinoceros horn and the owner or seller seeking the license establishes that the item is a bona fide antique through historical documentation evidencing provenance and showing the antique to be at least one hundred years old (i.e. created in or before 1914).
- Education, Science and Museums. Licenses will be granted where the distribution or change of possession of the ivory work or rhinoceros horn is for educational or scientific purposes, or the work will be given to a museum chartered pursuant to the Education Law.
- Trusts and Estates. The law permits the distribution of an ivory article or rhinoceros horn to a legal beneficiary of a trust or to heirs of an estate.
- Musical Instruments. A license will be granted where the ivory article or rhinoceros horn is part of a musical instrument, such as a piano, string instrument or wind instrument, provided that the person seeking the permit provides historical documentation demonstrating provenance and showing the instrument was created no later than 1975.
Penalties. The illegal trade of an ivory work worth more than $25,000 constitutes a felony. A violation of the law could result in a maximum fine of $3,000, or double the value of the article in question, whichever is greater. Repeat offenders face a maximum fine of $6,000 or three times the value of the article in question, whichever is greater.
Why this law? Supporters of the law claim prohibitions and strict penalties are necessary to protect endangered elephants and rhinos being slaughtered in part as a result of the global illicit market for ivory tusks and rhino horns. Governor Cuomo, who supports the legislation, stated that "[t]he illegal ivory trade has no place in New York State, and we will not stand for individuals who violate the law by supporting it."
Those who trade in ivory antiques claim the law will hurt legitimate sellers, but do little to protect the animals. They claim the real threat to the animals comes from the enormous illicit market for tusks and horns in China and other Asian countries. They also object to the fact that the law permits only the sale of antiques that are at least 100 years old and consist of less than 20% ivory. While federal law governing the sale of ivory requires the object to be at least 100 years old, it does not impose any content restrictions. (For example, the sale of a carved tusk from the 1800s could violate New York State law, but not federal law.) Dealers claim this inconsistency will divert significant trade in these objects to other states that do not impose content restrictions.
If you have any questions about laws relating to the trade in ivory goods or any other art-related legal issues, please contact Amelia Brankov at (212) 826-5574 or firstname.lastname@example.org or any other member of the Frankfurt Kurnit Art Law Group.
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