"A copyright owner's right to exclude others from using his property is fundamental and beyond dispute" – U.S. Circuit Judge Denny Chin in his March 22, 2011, decision in Author's Guild et al. v. Google Inc.

The Giacometti Foundation is the majority holder of Alberto Giacometti's copyright. Together with the other holders, it has refused to grant John Baldessari permission to duplicate a sculpture by Giacometti for an installation called "The Giacometti Variations" commissioned by the Prada Foundation in Milan. Replicas of "Tall Woman II" were nevertheless executed and exhibited in the fall of 2010 at the Prada Foundation. At the Giacometti Foundation's request, the exhibition was shut down and the case is pending in the Court of Milan. The Giacometti Foundation holds that every copyright owner has the right to grant or refuse permission to reproduce a work under copyright. This position has received the support of such artists as Daniel Buren and Alain Kirili, and of such estates and foundations as the Gala-Salvador Dali Foundation, the Lucio Fontana Foundation, the George Rickey Foundation, the Moholy-Nagy Foundation, the Hannah Wilke Estate, the Piero Dorazio Estate, the Pietro Consagra Estate, and the artists' rights group VAGA.

Today intellectual property law is largely ignored by the art world. Museums commonly market unauthorized reproductions of copyrighted works from their collection. They exhibit "appropriation" artists' works without ensuring that permissions of the "appropriated" authors have been secured. Dealers sell artworks that copy works of famous modern and contemporary artists as substitutes for the real thing. Artists who affirm their own copyright refuse to acknowledge that of others. Art journals and exhibition catalogues carelessly reproduce and promote infringing artworks. "Fair use" is now constantly brandished in order to make money in the name of culture and education: profitable image data banks multiply, convicted forgers now brand themselves as artists to set up shop on the Internet. Facing this coalition, artists or estates whose property has been stolen rarely dare come to the fore, wary of retribution and fearing to be accused of being repressive or regressive.

Two recent decisions by U.S. federal judges may finally mark the beginning of  a sensible reconsideration of the issue. One is the March 22 rejection by Judge Denny Chin of the Amended Settlement Agreement (ASA) in the Authors Guild of America's lawsuit against Google over Google Books's scanning of books covers still under copyright protection, and the other is the March 18 summary judgment of Judge Barbara A. Batts in the case of photographer Patrick Cariou versus Richard Prince and the Gagosian Gallery.

The fair use exception in U.S. copyright law has a clear purpose, that of opening copyrighted original expression to comments and criticism in order to encourage research and to prevent censorship. This should not be forgotten in assessing the combination of the four factors which define fair use. "If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer's claim to a higher or different artistic use… there would be no practicable boundary to the fair use defense," ruled Judge Batts, rejecting Prince and Gagosian's argument that "appropriation art is per se fair use, regardless of whether or not the new artwork in any way comments on the original works appropriated."

The protection offered by Copyright Law aims at fostering creation to benefit the public. The licensing of derivatives is an important source of income for artists and estates, and should be available as such. As Judge Batts noted in her summary judgment, "widespread unlicensed use [of copyrighted artworks] in new artworks would destroy the market for such licenses." Hence, the purpose of copyright is served by protecting the copied artworks. The monopoly created by copyright "does not unduly impede referential analysis or the development of new ideas out of old," the judge stated.  

The Cariou judgment reminds museums and dealers of their own liability. They can no longer hide behind the freedom of the appropriation artist, however famous he or she is. Following Judge Batts's conclusion, museums and dealers indeed have "at the very least the right and ability (and perhaps even responsibility) to ensure that [appropriation] artists obtained licenses to use" the copyrighted work, especially when "they are well aware of (and capitalized on) the artist's reputation as an appropriation artist who rejects the constricts of copyright law."

In his ruling in the Google Books case, Judge Chin clearly affirmed the right of copyright holders to decide who can and who cannot use their property; this is incontrovertible, as his above quote makes plain. He added that "it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights" when their works are copied without permission.

In 1973, the College Art Association issued a resolution concerning the acquisition of cultural properties originating in foreign countries in the wake of the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural property. It was meant to prevent clandestine excavation and theft of archeological artifacts and antiquities. Looted countries could at last be heard.

In 1998 after a spate of well-publicized books documenting the histories of art stolen during World War II, the Association of Art Museum Directors adopted the guidelines concerning the unlawful appropriation of objects during the Nazi Era. Before that, many museums, dealers, and collectors were not scrupulous about the provenance of all wrongly appropriated artworks. Families of the rightful owners rarely dared to complain.

In 2011, it is time for museums, universities, and dealers to work with artists and estates to issue guidelines concerning uses of copyrighted artworks based on copyright law. This is the only way to avoid unnecessary litigation. A regulated market is in the dealers' best interest. Museums have a duty to respect the rights of all artists. The issue of fair use deserves more than merely an aesthetic debate.

Véronique Wiesinger is the director of the Alberto and Annette Giacometti Foundation in Paris.