Wednesday, March 20, 2013


I don't have much to say about Kirtsaeng, but I was struck by this passage from Justice Ginsburg's dissent, addressing the effect of her preferred result on the display right:
Limiting §109(c) to U. S.-made works, however, does not bar art museums from lawfully displaying works made in other countries. Museums can, of course, seek the copyright owner’s permission to display a work. Furthermore, the sale of a work of art to a U. S. museum may carry with it an implied license to publicly display the work. See 2 Patry §5:131, at 5–280 (“[C]ourts have noted the potential availability of an implied nonexclusive licens[e] when the circumstances . . . demonstrate that the parties intended that the work would be used for a specific purpose.”). Displaying a work of art as part of a museum exhibition might also qualify as a “fair use” under 17 U. S. C. §107. Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619 F. 3d 301, 313–316 (CA4 2010) (display of copyrighted logo in museum-like exhibition constituted “fair use”).
Finally, Justice Ginsburg has met a limit on copyright she likes! Well, maybe. At least possibly, if the museums can’t get permission (of course if permission is denied, the implied license seems … unlikely, unless permission is implied as a matter of law). If museum display is fair use, is bookseller display? What about display by an individual? If public display of an imported work lawfully made under some other country’s law triggers the display right, then could finding fair use in the average museum situation--where the display right is likely most significant--satisfy the three-step test under TRIPS? I end up doubtful that Justice Ginsburg would actually be sympathetic to a fair use claim if a foreign author objected to public display—indeed, allowing control over public display would then be granting extremely strong moral rights of divulgation/withdrawal to foreign works, though not domestic ones.

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