Bookstores Suffer Unintended Consequences From Mark Hamill's Campaign Against Fake Autographs
Don't use government force, Luke
In a galaxy far, far away, Luke Skywalker is the ultimate hero (or is he?), but here's a note to state lawmakers in this galaxy: maybe don't trust him to make policy for you.
California is learning that the hard way, as a new law championed by Star Wars actor Mark Hamill has landed the state in court. In that lawsuit, the owners of a California-based book store argue that new rules governing the sale of autographed memorabilia—like books signed by authors at events hosted by their store and scores of others around the state—are overly burdensome, threaten harsh punishments for minor infractions, and above all else are poorly written.
Under the terms of the law, which passed last year and took effect in January, retailers have to provide certificates of authenticity for all autographed merchandise worth more than $5. That doesn't sound like a difficult burden for retailers, but look at what has to be included on that certificate.
The law specifies that those certificates must contain a description of the collectible and the name of the person who signed it, the purchase price and date, and an "explicit statement" of authenticity. It must also indicate how many items were signed, whether they are numbered as part of a series, and whether any more might be sold in the future. Oh, and there has to be proof that the seller is insured. And, of course, there has to be a certificate number provided by the bureaucrats at the State Board of Equalization (a real thing, believe it or not, tasked with collecting various taxes and fees for everything from gasoline to recycled computers). There's a separate requirement for an "identifying serial number," which, naturally, has to match the serial number of the receipt—a receipt that must be kept by the seller for no less than seven years after the transaction. Finally, the certificate of authenticity has to say whether the author provided his John Hancock in the presence of the dealer, or another witness, and include the name of the witness. (There is no word on whether the witness' first born must also sign the form.)
Make a mistake on any of those requirements, and dealers could be liable for penalties equal to 10 times the purchase price of the autographed item—plus court costs and attorneys' fees.
"This law's expensive mandates — with voluminous reporting requirements and draconian penalties — create a nightmare for independent booksellers that thrive on author events and book signings," said Bill Petrocelli, owner of the Marin County-based Book Passage, which has three locations around the San Francisco Bay Area. Petrocelli is the plaintiff in the lawsuit seeking a permanent injunction against the enforcement of the autograph law. The Pacific Legal Foundation, a libertarian legal nonprofit, is representing him in the lawsuit. The lawsuit was filed in federal court for the Northern District of California.
Anastasia Boden, an attorney for PLF, says the law does little to protect consumers from the dangers of fraudulently autographed memorabilia. Rather, the lawsuit alleges, the law will have a chilling effect on "truthful, non-misleading speech" protected by the First Amendment, as it will reduce or eliminate book-signing events, like the ones Book Passage hosts hundreds of times each year.
Retailers, authors, and the general public lose, but the law could be a big win for trial lawyers, given the high threshold for record-keeping imposed on retailers, and the potentially debilitating penalties that could be visited upon small book stores if they fail to meet those obligations.
"Professional plaintiff's lawyers must be chomping at the bit," says Boden.
The law also includes several arbitrary exemptions. Pawn brokers and online retailers are exempt from the rules, despite the fact that those sellers are "just as likely, if not more likely, to engage in sales of fraudulent autographs," the lawsuit alleges.
The whole thing is a mess of unintended consequences. When it passed last year, the law was meant to crack down on the estimated $100 million market for fake autographed memorabilia.
"The public is being swindled on a daily basis and the numbers are huge. I just can't keep quiet when I see people I love being hurt," Hamill toldThe Los Angeles Times in 2016 as the bill was working its way through the legislature.
(Update: Who could have forseen the potential problems with a law like this? Well, Reason's Brian Doherty, for one. Last year, when the bill cleared the state legislature, Doherty warned that "it could if fully enforced squash, among other things, the practice of author book events in the state" and quoted several bookstore owners who were worried about exactly that sort of thing happening, even though government officials promised it wouldn't.)
Sure, fake memorabilia might be a real problem, but this is another of those problems that's only been made worse by getting government involved. Book stores and other small businesses that have done nothing wrong, like Petrocelli's Book Passage, now have to clear an unreasonably high burden and might lose access to high profile authors that bring customers through the front door.
Reputable retailers should take steps to authenticate autographs without government-imposed mandates, and California's new law leaves such gaping loopholes (for online sellers and pawn shops) that it's hard to see how it will really fix the problem that worries Hamill.
Well, the Jedi never did have a great relationship with legislators.