A recent decision by the United States Court of Appeals for the Second Circuit could make it nearly impossible for American museums to exhibit many modern and contemporary artworks created outside the country by lifting copyright protections on such works, effectively inhibiting institutions’ ability to function properly or serve the public. The Association of Art Museum Directors and nearly 30 American museums — including MoMA, LACMA, the Guggenheim, the Getty, the Whitney, SFMOMA, the Art Institute of Chicago, and the Dallas Museum of Art — have written an amicus brief calling for the Second Circuit court to reverse the recent copyright ruling that restricts the protections afforded by Section 109 of the Copyright Act to artworks made within the United States.
The 37-page brief (available in full as a PDF here) argues that the court’s decision “could have serious repercussions for American museums and their ability to exhibit art,” “cause museums to lose their ability to display foreign-made, copyrighted works of art to the public,” and similarly problematize their acquisition of such works.
“Every museum that hangs a painting of foreign origin in its galleries potentially is a copyright infringer,” the brief explains. “The most basic of museum functions – exhibiting art – could give rise to infringement claims. Museums would have to fall back on untested defenses like fair use, but would lose the certainty that Section 109 has long provided.”
The brief continues to claim that the Second Circuit court “overlooked a fundamental point of law” in its decision regarding Section 109 of the Copyright Act. The brief explains that:
At a minimum, the proper construction of Section 109 is one that treats works of U.S. and foreign origin the same. Absent clear statutory language to the contrary, a party that seeks to avail itself of the benefits of U.S. copyright law protections must also be subject to all the limitations of that law, regardless of where it made copies of the works at issue.
After explaining at length and in detail the staggering list of problems the court’s decision could create for them, the museums and Association of Art Museum Directors conclude:
The Court should reverse the decision below and find that a copy that was made and acquired abroad and then imported into the United States can always be distributed and publicly displayed within the United States without permission so long as the copyright owner authorized the first distribution abroad.
Read the full document here as a PDF.
— Benjamin Sutton