Last Updated on October 24, 2018
At Art Law Journal, we try to tackle various issues surrounding intellectual property but we are far from the only resource on the web. While we hope that we are the go-to resource for many members of the art community, we thought it might be a good idea to expose you to some of the other quality resources. Today we take a look at one from the College Art Association (CAA), which focuses on one of the most important concepts in intellectual property law and one the hardest concepts to grasp: fair use.
Fair Use: One of the Most Common Art Law Issues
Often times, artists are faced with the possibility that someone has used their work without permission, and vice versa. After all, many artists are inherently inspired by others’ work, and often times the border between inspiration and blatant copyright infringement can be tricky. Copyright protection exists for:
- an original work of authorship,
- fixed in a tangible medium
- with a minimal degree of creativity.
When an artist or creator uses whole or portions of a work, whether intentionally or unintentionally, without permission, it is considered copyright infringement. However, copyright infringement isn’t always easy to prove, and often times, the offender can institute a fair use defense.
The fair use doctrine makes certain exceptions that allow the use of copyrighted material without that use being considered an infringement. To decide whether something is fair use is not an easy task as there are no bright lines and no use can actually be determined to be a fair use unless the court rules that it is. The outcome of whether something is fair use hinges on balancing several factors, such as
- the purpose of the work
- the nature of the work
- how much of it is being used
- Its effect on the market
These factors are weighed independently, with no one factor determining the outcome. Since the weighting of the factors is somewhat subjective, the outcome can be difficult to predict.
However, certain types of uses are easier than others to predetermine. One way to think about this is to view fair use in two buckets.
- The first bucket holds the types of uses that are specifically carved out in the Copyright Act, such as criticism, news reporting, teaching, research, and parody. These are a bit more straightforward and based on basic rights such as free speech or the desire to have an informed society. When a news report puts a photo of an escaped criminal on TV to help identify him or her for capture, we don’t want the photographer suing the TV network for using the image without permission. Yet, even in the carve-outs, there are gray areas. For example, fair use allows a professor to give copies of an article or an excerpt of a book to a class for purposes of teaching, but would not allow the professor to copy the whole book for his class. The class would still have to pay for the book.
- The second bucket deals with all the other uses, which may or may not have cases on point to guide us on the potential outcome.
The result is that many artists often find themselves wondering whether they have a case for copyright infringement or whether their use of another creator’s work is acceptable or an infringement. One resource that artists fine helpful is College Art Association’s Code of Best Practices in Fair Use for the Visual Arts.
How to Use College Art Association’s Fair Use Code
For those who are unfamiliar with the College Art Association, it’s an organization founded in 1911 to foster career development and professional advancement of artists while also honoring their achievements and affirming high ethical standards within the profession. In addition to offering an army of resources for artists as they’re moving forward with their professional careers, the CAA also puts on an annual conference that’s considered to be one of the best networking and learning events for artists in the country.
The CAA’s Association’s Code of Best Practices in Fair Use for the Visual Arts has been in development since 2012, led by two professors of communications studies at American University and guided by a CAA task force. Officially released in 2015, the CAA’s fair use code is chock full of useful information for artists who have questions about fair use. Breaking down fair use guidelines into a set of principles, the CAA’s fair use code teaches artists how fair use can be invoked and implemented when using copyrighted materials in scholarship. It’s especially handy for artists who teach or critique other artist’s work, both in a classroom and in their practice.
The code, which is completely free and downloadable online, is organized into three sections: when and why one should use the code, a five-section outline for the code’s best practices, and an appendix that details how the authors reached their conclusions and recommendations for invoking the fair use doctrine. At its heart, the code was designed to foster continued engagement and free-flowing discourse about visual art, because the authors argue that artists are often hesitant to share or comment on other work because they’re worried about copyright implications. Understanding the fair use doctrine, the artists say, is a means through which artists can further advance and understand each other’s work.
The Code is split into five key areas that the authors discuss in detail:
- Analytic Writing
- Teaching About Art
- Making Art
- Museum Uses
- Online Access to Archival and Special Collections.
Breaking Down the CAA Fair Use Code
Each section of the CAA’s fair use code offers a sizable amount of information regarding when artists can and can’t invoke fair use within their context of their own course of work. The analytical writing portion of the text gives specific guidelines for how artists and writers should approach the use of another artist’s work when using it as part of a critique. Writers are encouraged to use it only if there’s a real analytical objective behind its use, being mindful of the size of the reproduction of the visual art in a text, and taking into consideration whether that reproduction might substitute as an original in its reading.
Similarly, teachers are encouraged to take care when depicting an artist’s work and ensuring that their reason for doing so goes beyond the simple act of doing so. When teaching a visual work, it should be analyzed and weighed within the context of an argument or skill, rather than simply presenting the work as an important work to be viewed. Teachers are additionally encouraged to use metadata when teaching online courses, so there aren’t any issues with attribution.
While it tends to get trickier when it comes to using copyrighted material when making art, the code takes care to specifically outline the right way to do it. The code’s authors realize sometimes confront the work of others as part of their own artistic dialogue, and they encourage artists to continue to do so – though treading carefully is certainly paramount. The code suggests that artists should never insinuate that the copyrighted work is their own, and instead try and find a way to label or embed the original author’s attribution somewhere within the work – even if that means with a label beside the work. Likewise, artists should be prepared to explain why and how the copyrighted work is an important contribution to the purpose of their own.
Finally, museum professionals who curate exhibitions and work with online collections who publish catalogs, organize exhibitions and create digital archives of artworks are held to especially critical standards, considering that often times this type of work, by its very definition, constitutes copyright infringement. For example, when a museum makes its permanent collection available on the internet, it’s usually for free – which inherently means the original author has lost an important aspect of the work’s copyright protection (likewise, most museums only digitize works once they’ve entered into the public domain). Again, attribution and the proper metadata for identifying these works will be key when engaging in these practices, as well as a careful analysis as to whether organizing this show enhances or expounds upon the commentary the original artists were intending to make.
We think this is an excellent resource for creatives and encourage you to take a look. While you are at it, the CAA has many other resources on its Intellectual Property Resource page, including US Copyright Fundamentals and Copyright Outside of the United States, to just name a few. We hope you take advantage of these resources as well as our own Copyright eBook, The Law of Creativity.
Was the CAA Fair Use Guide helpful? Let us know in the comments section below. If you still have questions about fair use, add them to the comments section also and we’ll be happy to help you sort it out!
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.