Can US Museums Exhibit Foreign Art? Supreme Court to Decide
Here’s a nice recap of the background story via Alison Keeley.
Supap Kirtsaeng came to the United States from Thailand in 1997 to study at Cornell. Kirtsaeng financed his education in part by having relatives in Thailand purchase and ship textbooks to the United States. He would then sell the textbooks on Ebay and other websites, repay his relatives in Thailand, and keep the profits.
Kirtsaeng brought in up to $1.2 million in revenue. Smart kid; probably why he’s a Cornell math grad and USC math PhD (disclaimer, yours truly attended Cornell Law School). So, you may ask, what’s the big deal, and what does this have to do with foreign art and US museums? The art part concerns the exhibiting, lending and selling of foreign-made artworks. The law part comes in under one of our favorite legal doctrines, US Copyright law; in particular, the so-called “first sale doctrine.”
The First Sale Doctrine provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display, lend, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. So, presumably, Kirtsaeng was well within his legal right to resell books, right? Not so fast.
In 2008, a book publisher, John Wiley & Sons, sued Kirtsaeng for copyright and trademark infringement, alleging that the first sale doctrine did not apply to foreign made works. The New York District Court and the Second Circuit Court of Appeals, agreeing with the publisher, both held that Kirtsaeng violated John Wiley & Sons’ copyright by selling the publishers’ Thai edition textbooks in America. The Second Circuit looked to the plain text of the Copyright Act, which states that the first sale doctrine applies only to copyrighted goods “lawfully made under this title.” The court found that “lawfully made under this title” referred only to goods manufactured in the United States.
In effect, both courts hold the opinion that the first sale doctrine only applies to goods sold within the U.S., meaning that no one can import and sell a copyrighted good intended only for foreign audiences without the permission of the copyright owner. Kirtsaeng appealed to the US Supreme Court.
Of import to the artworld? The NY district court’s and Second Circuit’s decision doesn’t only impact eBay sellers; it impacts US-based museums and arts institutions by preventing them from exhibiting, lending, or selling foreign-made, copyrighted artworks.
So, what’s a US-based art institution to do?
The Association of Art Museum Directors, the Art Institute of Chicago, the J. Paul Getty Trust, the Los Angeles County Museum of Art, the Museum of Modern Art, the San Francisco Museum of Modern Art, the Solomon R. Guggenheim Foundation, the Whitney Museum of American Art, and twenty-two other United States museums of art submitted an amicus brief (friend of the court brief) to the US Supreme Court in support of Kirtsaeng. Here’s their thesis, in a nutshell.
By confining Section 109(a)’s [the first sale doctrine's] “lawfully made under this title” to copies manufactured in the United States, the Second Circuit set a precedent that, if extended, could limit Section 109(c) and cause museums to lose their ability to display foreign-made, copyrighted works of art to the public. Museums could also lose the ability under Section 109(a) to acquire, borrow, loan, and sell such artwork. The decision below potentially affects large swaths of modern, postwar, and contemporary art on display in American museums today. [italics added]
So, what will the US Supreme Court decide? Policy would dictate they side on Kirtsaeng’s — and by implication the museums’ — side. Otherwise there could be grave consequences for art institutions and art galleries, such as numerous and costly copyright infringement claims.
Granted, a decision in favor of the publisher wouldn’t necessarily mean the end of foreign made art exhibiting in the US. However, just think of the logistical and administrative nightmare this would cause. The museums’ amicus brief explains,
To avoid the risk of liability, museums could be forced to seek licenses from copyright owners. But clearing rights will be expensive and in many cases impossible. The cost of having to find copyright owners and negotiate individual licenses will be high, and museums likely will be unable to locate the copyright owner in every instance even after a diligent search. Copyright owners, who have no obligation to grant licenses, could demand sizeable royalty payments and non-monetary concessions like control over curatorial decisions. Where museums are unable to secure permissions, they would face an untenable choice: running the risk of copyright infringement liability or not making art available to the public or even acquiring art, whether by gift, bequest, or purchase. [italics added]
Control over curatorial decisions? Of course. Copyright owners of foreign-made works could demand certain perks or limitations on how the work is exhibited, with whom, and in the case of an exhibition catalogue containing the copyrighted works image, how and where the copyrighted work will be written about and displayed in the catalogue.
The U.S. Supreme Court will hear oral arguments on this case on Monday, October 29, 2012.