Could American Museums Be Prevented from Exhibiting Foreign Art Works?

Yes, says LibraryLaw Blog‘s Peter Hirtle.

I’ve been meaning to comment on Hirtle’s post from last Monday. Hirtle takes the upcoming US Supreme Court case concerning copyright and the “first sale” doctrine (Section 109 of the US Copyright Act), Costco v. Omega (a decision from the Ninth Circuit that upheld the Omega’s right to prevent Costco from selling legitimate Omega watches it had purchased from a gray-market importer. I’m linking to a brief but solid Forbes article for ease), and applies its possible outcome to museum exhibitions and the public display of art works. Hirtle argues:

The case centers on the “first sale” doctrine in copyright law codified in Section 109: the idea that once a copyright owner has sold a work, its ability to control further distributions and uses of that work end.  In the Appeals Court decision now before the Supreme Court, the court found that works made and sold overseas did not have 109 protections.

Section 109 is about more than just the lending of copyrighted materials, however.  Section 109(c) also authorizes the public display of a copyrighted work, “either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”  In most archival repositories, foreign manuscripts are not lent to individuals, but rather they are allowed to look at them in a reading room.  Similarly, foreign art works legally acquired from individuals other than the copyright owner are publicly displayed on museum walls.  The decision of the Appeals Court that the phrase “lawfully made under this title” does not apply to foreign goods acquired from someone other than the copyright owner puts both of these practices in jeopardy. [bolding mine]

Here’s my reading of Hirtle’s argument: if the Supreme Court upholds the Ninth Circuit’s decision, it would mean that any museum that wanted to display a foreign work still protected by copyright abroad would have to either get permission from the foreign copyright owner or make a fair use argument, unless they had obtained the copyright with the artwork or obtained permission to display the art work directly from the author and/or copyright owner. I wonder why no one else aside from Hirtle has picked up on this?

You can read Hirtle’s complete argument here.

Tags: Art Law, fair use, foreign art works, infringement, intellectual property, museums