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When art is installed in public spaces in the United States, the public's right to capture and share images for commercial or noncommercial purposes is not clearly defined by federal copyright law. This has led to both actual and threatened litigation. In the absence of a specific copyright rule designed to address these disputes, they must be resolved under a patchwork of other doctrines that are uncertain in scope, including fair use, de minimis use, and the statutory exception for images of architectural works, but none of these provide predictable results. In contrast, many foreign jurisdictions have enacted 'freedom of panorama" legislation. Although these laws address the issue more directly, they often have their own ambiguities, and due to a lack of international harmonization, they vary widely in their scope. This Article examines the current treatment of public art under federal copyright law, compares the approaches taken by a number of foreign jurisdictions, and considers the possible contours of a federal panorama right that would protect the interests of copyright owners as well as the public interest in enabling access to images of public art and the public spaces where it resides.

Publication Citation

55 Wake Forest L. Rev. 597 (2020).