On Sun, 23 Nov 1997 02:22:33 -0500 (EST)  Bari B. Brandes wrote:
>Amalyah --
>
(snip)
>
>In short, the thing with the catalogues is it is literally not a fair
>use. I personally think that it should be allowed, but I found a journal
>article which argues that it's a for-profit enterprise which fails the
>fair use test.
>

Exhibition catalogues are sold, which makes them a "commercial" use, but not
necessarily a "for-profit" use (which would mean that the profits after expenses
would go into the pocket of the company owner or shareholders.)  In other words,
if the museum is a non-profit organization, proceeds from the sales of its
catalogues are of neccessity plowed back into the organization's cultural
activities (generally, the proceeds from catalogue sales do not even cover the
expenses of producing the catalogue, which is often subsidized by a donation.)
Bottom line: if a museum had to pay royalties to artists whose works appear in a
catalogue, the catalogue would not be produced.  We have even encountered at
least one case in which the artist contributed towards the expenses of a
catalogue, underlining what I wrote before about the (economic) advantages of a
catalogue to an artist.

I think a very good case could be made against fair use when the catalogue is a
co-publication with a commercial publisher, on the other hand. Here, the
catalogue is produced and distributed more or less like a trade book. At any
rate, I didn't mean to claim that reproduction in a catalogue is fair use; it
very well may not be. I'm only going on what lawyers have told me informally
about courts taking into consideration what "accepted market or professional
practice" is when deciding if an action is out of line or not. In other words,
were an artist to sue, the museum might not win on fair use, but the court could
probably be persuaded to understand the museum's action as normal professional
practice, which the artist would have had to be living in a cave not to know
about, and so go light on the museum re judgement and damages.  This is of course
speculation, and as I said before, we *do* try to get permission, because
speculation isn't enough.

(snip)
>
>> As for third-party copying, that's a tricky one.  Assuming the museum has the
>> right to display the works of art it owns, or borrows and exhibits with the
>
>I'm not really picturing someone standing in the museum taking sketches;
>it's more like seeing it *somewhere* -- in a newspaper or book, it doesn't
>really matter how the access is accomplished. Also, section 104A of the
>Copyright Act restores certain copyrights to foreign works -- so works
>that were previously in the oublic domain may now have enforceable
>copyrights!!
>
(snip)
>
>--Bari