As members of the creative economy, we are inundated with legal issues surrounding our creative business. Maybe you’re not sure about signing the terms of a new agreement, or you’re wondering whether someone’s use of one of your photos constitutes copyright infringement, or you’re trying to decide what type of corporate structure you should have for your business, such as a partnership or Limited Liability Corporation (LLC). At Art Law Journal, we try to tackle many of these issues but we are far from the only resource for art law information on the web, but not all of it is good, useful, or even accurate. Whatever your art law issue might be, it’s important to have a few go-to resources that can help you better understand how to tackle anything that arises. So, we thought it might be a good idea to review some of these sites, picking out some of the better materials so that you can have as many quality resources available to you as possible at your fingertips.
In this first issue, we take a look at the College Art Association (CAA), which has excellent resources on many legal issues, such as Standards and Guidelines and Intellectual Property. There is a lot to see at the CAA but today we will focus on a singular issue, one that is not only one of the most important concepts in intellectual property law but also among the hardest concepts to grasp: fair use. The CAA has put a lot of time and energy into helping creators navigate this difficult topic so we thought it best to devote an entire article to just discussing the CAA Fair use resources.
Fair Use: One of the Most Common Art Law Issues Artists Encounter
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 (think of our recent re-telling of the fair use debacle between artist Sherie Franssen and Cecily Brown). As we’ve discussed in our e-book, The Law of Creativity, 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 nature of the work and how much of it is being used. Since the weighting of the factors is somewhat subjective, the outcome can be difficult to predict. However, certain uses are a bit 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 carveouts, 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 CAAmany artists often find themselves in situations in which they’re wondering whether they have a case for copyright infringement, or whether they might be held liable for infringing on someone else’s copyright.
Enter the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts, one of the most viable resources for artists asking themselves fair use questions every day.
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, and
- Online Access to Archival and Special Collections
Breaking Down the CAA’s 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.
If you still have questions about when to invoke fair use within your practice after reading the College Art Association’s fair use code, send us an email and we’ll be happy to help you sort it out!