Can US Museums Exhibit Foreign Art? Supreme Court to Decide

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.

The case is Kirtsaeng v. John Wiley & Sons. Here’s a take on how it also impacts US-based libraries.

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