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Friending the Court

POSTED BY , ON November 15, 2012, Comments Off

As one of the Art Institute’s lawyers, I am usually quite happy to help keep the museum out of court. Over the last year, however, I have been proud to see the museum enter the fray in two significant copyright cases with potential implications for museums and the art-loving public.

Last November, the Art Institute helped prepare and joined an amicus curiae brief filed in the Second Circuit Court of Appeals. (Amicus curiae is Latin for “friend of the court,” which refers to a non-party who offers information to help a court reach a decision.) The case, Cariou v. Prince, involves a dispute between photographer Patrick Cariou and the appropriation artist Richard Prince. The key issue is whether Prince infringed Cariou’s copyrights by using Cariou’s images in his paintings. Prior to the appeal, the district court held that Prince overstepped the boundaries of “fair use” permitted under copyright law and was therefore liable to Cariou for copyright infringement.

Of direct interest to art museums was the district court’s related holding that the gallery exhibiting Prince’s work was also liable for copyright infringement because the gallery failed to ensure that Prince obtained permission to use Cariou’s photographs. Many museums are concerned that this holding could introduce new administrative and legal burdens and deter museums from acquiring and displaying works of appropriation art. The museums’ amicus curiae brief expressed these concerns and urged the appellate court to avoid interpreting the law in a manner which would impair the museums’ educational mission. The court’s final decision is still pending, but we know that they have us in mind: one of the judges specifically mentioned the concerns of art museums during the oral argument held in May.

More recently, the Art Institute helped prepare and joined another amicus curiae brief filed in the highest court in the land, the Supreme Court of the United States. The case, Kirtsaeng v. John Wiley & Sons, Inc., is a dispute over the scope of the “first sale” doctrine of copyright law. In a nutshell, the first sale doctrine permits an owner of a lawfully made copy (including the original copy) to sell, loan, and display the copy without the permission of the copyright owner. Consumers enjoy the benefits of the first sale doctrine whenever they sell a used book or CD without permission. Libraries rely on it to loan books to the public. Similarly, art museums have long relied on the first sale doctrine to acquire and publicly display art works. Therefore it came as quite a shock when the appellate court in the Kirtsaeng case held that the first sale doctrine only applies to copies made in the United States.

The art museums’ amicus curiae brief warned the Supreme Court of potential problems for museums if the first sale doctrine were interpreted to exclude foreign-made works. Such a result would potentially limit the ability of museums to engage in the essential functions of acquiring, loaning, borrowing, and publicly displaying many works of foreign-made modern and contemporary art. For example, most of the works on display on the third floor of the Art Institute’s Modern Wing could be implicated by this decision.

Fortunately, there is reason to believe that the court will reach a decision which avoids these problems. The oral argument held last month (audio and transcript here) included numerous references to the “parade of horribles” mentioned in briefs filed by the art museums, libraries, and other friends of the court. One question from Justice Breyer hit particularly close to home for me:

Sometimes horribles don’t occur because no one can believe it.

Now, for example, I believe there is going to be a storm, but it hasn’t started yet.

So I would like to know — I would like to know, if you were the lawyer for the Toyota distributor, and if you were the lawyer for the Metropolitan Museum of Art, or you are the lawyer for a university library, and your client comes to you and says, my God, I just read the Supreme Court opinion. It says that we can’t start selling these old books … or displaying the Picasso without the permission of the copyright holder…What, as their lawyer, do you tell them? Do you tell them, hey, no problem; or, do you tell them, you might become a law violator; or, do you tell them, I better litigate this? What do you tell them?

I hope that the Supreme Court provides me with an easy answer to this question. We’ll find out in several months, when the court is expected to release its opinion.

Image Credit:

Honoré Victorin Daumier. “- The Court, having weighed the evidence and apportioned the advantage accruing from the dereliction, abrogates the appeal and all similar procedures, discharges the appellant and amends the judgement of the lower Court in respect to the costs of th respondent, with the exception of a forfeiture payment to Advocate Bizotin in respect of the final judgement, and hereby dismisses both parties as aforementioned. – My God, what a verdict….. my lawyer will ask for at least seventy five francs to explain this to me…..,” plate 4 from Les Gens De Justice, 1845. John H. Wrenn Memorial Collection.

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