Code of Best Practices in Fair Use for the Visual Arts

In February 2015, the College Art Association (CAA) published the Code of Best Practices in Fair Use for the Visual Arts, which in similar fashion to the Documentary Filmmakers’ Statement of Best Practices in Fair Use, provides  a set of guidelines for asserting fair use of copyrighted materials, but this time in the visual arts arena.  The guidelines are derived from a consensus of opinions developed through discussions with hundreds of various visual arts professionals — art historians, artists, museum curators, editors and publishers.

The Code helps to counter the notion that permissions or licenses are the only options available to artists to avoid copyright litigation. Seeking permission or a license can be time consuming, prohibitively expensive and generally disruptive to the artistic process.  To that end the Code explains instances where users may want to assert fair use rather than seek leave, and it also provides guidance about the risks an artist faces in taking such a stance.

The Code addresses the following five Visual Arts topics:

  1. Analytic Writing: This section explains when scholars and others writing about art may invoke fair use to quote, excerpt or reproduce copyrighted works.
  2. Teaching about Art: Here the Code explains when teachers may invoke fair use in using copyrighted works to support formal instruction in a range of settings, including online and distance teaching.
  3. Making Art: This section outlines under what circumstances artists may invoke fair use to incorporate copyrighted material into new artworks in any medium.
  4. Museum Uses:  Here, museums and their staffs can see when and where they may invoke fair use in using copyrighted works—including images and text as well as time-based and born-digital material—when organizing exhibitions, developing educational materials (within the museum and online), publishing catalogues, and other related activities.
  5. Online Access to Archival and Special Collections: In this section the Code explains when museums and their staffs may invoke fair use to create digital preservation copies and/or enable digital access to copyrighted materials in their collections.

The authors of the Code take a highly critical look at what they consider to be the current rampant, nearly default use of permissions and licenses, noting that “Members of the visual arts communities of practice encounter copyright permissions issues in connection with virtually every aspect of fulfilling their professional responsibilities.”1   Much of the focus on permissions arises from misinformation and a lack of understanding amongst visual artists.  “The pervasive permissions culture, exercised as if fair use were not available to the visual arts communities, changes and even deforms the work produced.”2   Notably, the authors of the Code call attention to some of the self-inflicted problems in the visual arts community – such as a lack of under-standing of copyright law, a fear of reprisal from those controlling copyrights and the militancy of certain copyright holding organizations.

The reasonable fear expressed in the Code is that the prevailing permissions culture will have a stifling effect on creativity. In other words, the innovation that serves as the bedrock of copyright law is hamstrung by a closed system of permissions. As one scholar put it, “I think of copyright as a cudgel, and I have been repeatedly forestalled and censored because I have not been able to obtain copyright permission. For those of us who work against the grain of [the] market-driven arts economy, their one resource for controlling us is copyright.”3

There has been some notable criticism of the Code, as evidenced by an open letter from National Press Photographers Association.  The letter, which has been endorsed by other visual arts groups, casts a critical eye on the Code by describing its overly adversarial stance on permissions.  “The code fails to educate the academic arts community on when licensing is appropriate.”4   The writers of the letter posit a counter theory on how it is that the Code that will stifle creativity by using education as an example:  “If educators are permitted to claim fair use for all of their classroom materials, publishers may lack the incentive to produce those materials.”5   After dissecting each topic in the Code, the authors end their letter by stating, “Without participation from all of the stakeholders in the visual arts community there can be no consensus, let alone a set of “Best Practices in Fair Use for the Visual Arts.”6   Essentially, then, the title is a misnomer and the Code “encourages misappropriation of copyrighted work rather than the practice of due diligence and licensing.”7

Ultimately, everyone should understand that the Code, regardless of its title, is not the law but only an interpretation of the law in its current state.  Therefore, it should not be followed as if it were the last word on best copyright practices.  Nonetheless, we do believe that the Code is a well-researched interpretation of the law, a decent predictor of how certain fair use disputes may be resolved and an extremely useful guide in weighing the risks of fair use against the expense and inefficiencies of permissions and licenses.

[1] Aufderheide, Patricia, and Peter Jaszki. “Copyright, Permissions and Fair Use in the Visual Arts Communities: An Issues Report.” One (2015). Center for Media and Social Impact. College Art Association and Center for Media and Social Impact. Web. 1 Mar. 2015.

[2] Ibid.

[3] Ibid.

[4] “Comments on CAA “Code of Best Practices in Fair Use for the Visual Arts”.” Ed., Mickey Osterreicher. National Press Photographers Association, 12 Mar. 2015. Web. 10 Apr. 2015.

[5] Ibid.

[6] Ibid.

[7] Ibid.