Tom Allen, president and CEO of the Association of American Publishers, sees the issues at stake in the Kirtsaeng case and those presented by the museums as “apples and oranges.” The display of an artwork in a museum, he said, is very different from making 10,000 copies of a work that is destined for a particular market somewhere else in the world. Furthermore, the “parade of hypothetical horribles” (or potential negative consequences) in the museums’ brief is, he said, highly unlikely to occur. “Frankly,” he told The Observer over the phone, “I’m not certain what led the museums to write a brief like this.”
So what were some of these “hypothetical horribles”? As Justice Breyer summarized during the oral arguments on Oct. 29, “millions and millions of dollars’ worth of items with copyrighted indications of some kind in them that we import every year; museums that buy Picassos that now, under our last case, receive American protection as soon as that Picasso comes to the United States, and they can’t display it without getting permission from the five heirs who are disputing ownership of the Picasso copyrights. Those are some of the horribles that they sketch. And if I am looking for the bear in the mouse hole, I look at those horribles, and there I see that bear.” The issue of whether or not 109(a) applies to foreign-made goods has bubbled to the surface in the past few years. In a 2010 case involving Costco and the Swiss watchmaker Omega—in which Costco bought copyrighted watches that were imported and resold—the Supreme Court just missed an opportunity to address the issue when it was split 4-4 (Justice Elena Kagan had to recuse herself because she had signed the legal brief for the government in that case). In this case, Ms. Kagan may cast the deciding vote.
Whether the court decides that the law does or doesn’t apply to works made outside the U.S., the museums will still have at their disposal the fair use doctrine, though that is less reassuring, as it would have to be applied case by case. They may also lobby Congress to change the law (which is not that easy to do), or work with artists and estates to prevent the existing law from being carried out in a draconian way. Whether or not this case is about museums, the impact of an opinion by the country’s highest court that even touches on the issue can be enormous for future cases that have to grapple with similar issues. As for the museums stepping in to raise the issue, as Mr. Clarida put it, “If they don’t, who will?”
editorial@observer.com
