Fair Use Successes in the Visual Arts at #CAA2016

At the College Art Association’s annual meeting, where each of the thousands of participants received a copy of the Code of Best Practices in Fair Use for the Visual Arts [2], panelists from various backgrounds recounted remarkable steps forward in applying fair use to the visual arts. Each shared their experience with the code that ultimately led to success. 

Among the attendees were those who were eager to learn about the code and bring forth the information to their collegues. Most, however, were inquisitive about its application and limitations. This brought forth an interactive and inspiring Q&A session.

First steps. 

When the Code was released in February 2015 [3], Judy Metro (Editor in Chief, National Gallery of Art) reminded the audience, visual arts professionals were locked into a permissions culture [4]that delayed their work, raised costs, and most importantly, stifled imagination. Many believed that the Code they had collaboratively shaped promised to change that. 

But how much could be accomplished in the first year—especially in a field markedly subject to deeply personal relationships? 

Scholarship.

Turns out, a lot. First, the College Art Association itself overturned its copyright policies for authors. As publications director Betty Leigh Hutcheson explained, instead of demanding that authors get permissions for all images and indemnify the press, now CAA’s contract asks authors to read the Code [5] and apply it to their uses. Indemnification is no longer required. 

Other publishers of artwork also told of changing policy. Patricia Fidler of the Yale University Press described how, inspired by the Code, the press brought to Yale University the opportunity to more effectively meet mission. The Press has now created its own guidelines specific to scholarly publishing. This serves as another tool for authors to rely on when making their fair use claim. Just as important, for Fidler, is the fact that other parts of Yale University, including museums, are now considering expanding their access to fair use.  “It's a big step,” she said, “to give authors the last word on their fair use. And we are proud that it says on our website, ‘Yale University Press supports use of fair use in our scholarly publications.’” The brand-new document will soon be publically available. 

Press.

As well, Joseph Newland, publishing director of the Menil Collection in Houston, explained how the Menil’s policies have changed. Thanks to the Code, the Menil has expanded access to fair use for its use of images in work its press office does, as well as use of images more generally.  “We’re now expanding our internal guidelines, grounded in the Code, for text and other uses,” he said. The benefits have already shown up. “It’s really helped work flow, especially at the press office, which often needs to respond to the news cycle in a timely way.” 

Learning from frustration. 

Susan Higman Larsen, Director of Publishing at the Detroit Institute of Art, told about having to publish a work without relevant images, because of intolerable attempts at controlling content by an estate. 

“We misunderstood fair use,” she explained. “We didn’t understand that commercial uses are just as eligible for fair use as non-commercial ones.” The Code helped clear that up, she said, and now DIA is publishing a new project, in which the author wants to employ an image from the same artist. “This time, we’ll claim fair use,” she said. Furthermore, the DIA is considering changing its policies. 

Art, publishing and empty threats.

Artist Rebekah Modrak, who teaches at the University of Michigan, told the story of creating art that incorporated copyrighted material.  Her work creating an imaginary company Re Made Co. [6]  spoofed the overexemplifying hipster-Brooklyn site Best Made Co. [7]  After getting a cease-and-desist letter, she turned for advice to CAA, which steered her to good legal advice at University of Michigan. Her university’s lawyers welcomed the opportunity to support her fair uses. 

She then published a recounting of her experience for a Routledge publication; she used the Code to convince [8] the Routledge editors that fair use would apply to reproduction of images of her own art. 

Awareness and action. 

Patricia Aufderheide shared early results from a 2,500-person CAA survey, showing broad awareness (more than 2/3) of the Code. Moreover, a third of those aware of the Code had already shared their knowledge, usually with more than one kind of interlocutor—students, colleagues, association members. Many of those aware of the Code had already put it to use. Indeed, 11% of all respondents had only begun to employ fair use after the appearance of the Code, a big leap and a demonstration of the power of understanding community values and best practice. 

Peter Jaszi talked about future goals, including clearing up stubborn myths (example: commercial work not eligible for fair use), educating in-house legal counsel about the importance of mission-oriented fair use, and expanding the employment of fair use by museums.  He encouraged people to avail themselves of the many resources—FAQs, explainers, infographics, background documents, slideshows and more—available both at CAA [9] and at the Center for Media & Social Impact. [2]