Saturday, April 21, 2018

2nd Circuit: It’s Illegal to Import and Sell Foreign Works Without Permission

Remember the Costco v. Omega fiasco from last winter, where the U.S. Supreme Court, with Justice Kagan recusing herself, went 4-4 regarding the issue of whether the U.S. Copyright Act applied extra-territorially? In that case, the Supreme Court was reviewing a 9th Circuit decision that upheld Omega’s right to prevent Costco from selling legitimate Omega watches it had purchased abroad from a gray-market importer and selling them for much lower cost in the U.S.

Well, yesterday, the 2nd Circuit agreed with the 9th Circuit when it decided 2-1 in John Wiley & Sons Inc. v. Supap Kirtsaeng that it is illegal for anyone to import and sell foreign-made copyright works without the copyright owner’s consent.

Why is this important? Remember Cornell University’s Peter Hirtle, and his argument on what the Costco decision, if upheld, would have for museum exhibitions and the public display of art works? (Note here that Hirtle focuses on the public display of artworks, not just the resale right.) Well, about a year ago I applied Hirtle’s reading to visual artworks. Here’s the reminder:

[I]f 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?

With the 2nd and 9th Circuit’s agreeing, and without a circuit split, it seems this reading is the guiding light. Hirtle’s argument may be accessed here.

Thomson Reuters has more here.


Get Ready to See More Copyright Litigation

It’s bad enough fair use has become the Colosseum of U.S. Copyright law. But starting on January 1, 2013, we may have more copyright litigation concerning a little-known provision of the 1976 Copyright Act. Section 203 of the U.S. Copyright Act, Termination of transfers and licenses granted by the author, states that “[i]n the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination[.]“

What this basically means is that artists and other creative individuals will generally have the right to reclaim ownership of their creative works made after January 1, 1978, unless they were employees while they created artistic works, or fall under a work-for-hire provision.

According to the NY Times, this provision is bound to be hotly contested in the area of music recordings, particularly when it concerns big music stars like Bob Dylan, The Eagles, and Bruce Springsteen and the big four recording companies. So, where these musicians employees? Not so fast says June Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. Applying “common sense,” we must ask, “Where do they work? Do you pay Social Security for them? Do you withdraw taxes from a paycheck? Under those kinds of definitions it seems pretty clear that your standard kind of recording artist from the ’70s or ’80s is not an employee but an independent contractor.”

I’m a bit short on time right now so I cannot fully digest this situation, but the one question I do have in mind is how this will affect — if at all — visual artists.

Update: August 17, 2011

Village People band member files transfer for his share.


Man Sues His Uncle for a Warhol

The son of a late art dealer has sued his uncle, claiming the man refuses to return an Andy Warhol portrait of his late mother. Via Courthouse News.


KKK In Another Free Speech Dispute

This is another interesting free speech case, where the United Northern & Southern Knights of the Ku Klux Klan are arguing that distributing leaflets containing their beliefs is not littering, but leafleting,  an act usually protected by the First Amendment. In its defense, the Klan cites Indiana Code § 35-45-3-2, which, in part, defines “Refuse” as “solid and semisolid wastes, dead animals, and offal.”

The Klan is being represented by the ACLU in Indianapolis Federal Court. Via Courthouse News.


Graffiti, Art, or Free Speech Violation?

Yuma, Arizona’s The Vertical Church is causing a bit of controversy. The Church has designated a free-standing wall along the north edge of the property as the Art Wall,specifically to promote “a form of ministry.” But not just anything can be posted or painted on the wall. A sign posted above the mural invites people to express themselves artistically, with the only requirement being that they not use profanity or gang images.

However, Yuma has an ordinance that expressly bans graffiti, arguing that even the sign posted above the wall also is a violation of city ordinances.

We’re not sure if the church plans on fighting the city ordinance, but we can certainly see the church making a very powerful Molotov connecting two First Amendment clauses: the free speech clause and the free exercise of religion clause.  Interesting to see what happens.
Via the Yuma Sun.

Shepard Fairey Gets His Ass Kicked

For being an Obama “illuminati” and a “Yankee hipster.” The Danish didn’t respond well to Fairey’s attempt to play politics and art. Ok, so Obama and most of Europe bought into it; the Danes didn’t.


Will the Real Motherwell Painting Please Stand Up

Authenticity disputes are never pretty — particularly when they involve works that are worth hundreds of thousands of dollars — but a debate over a contested Robert Motherwell painting has exploded into a truly head-spinning tangle of claims and counterclaims.

Via Artinfo.


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