Fair Use Question of the Month: Writing About Art

Dear CMSI,

I've just gotten an academic article accepted! It’s a comparison of the work of two major later twentieth-century painters. I've been able to find acceptable-quality reproductions of the work I'm comparing, but the journal asks authors to get permission for all illustrations. Do I have to get permission?

Jay

Dear Jay,

We would suggest consulting the Code of Best Practices in Fair Use for the Visual Arts [2] to see if your uses are within the best practices of the field. For instance, in Principle One: Analytic Writing [3], your peers find that one “may invoke fair use to quote, excerpt, or reproduce copyrighted works,” with some limitations. This may apply to your case.

However, be sure to look carefully at the limitations. They include (among others) having a clear reason linked to your analysis for showing the images, a decision linked to that reason for the sizes and other characteristics of the reproductions, and of course attribution.

Once you have considered these factors, you can be confident in your own decision, and share this information with the editors of the journal. While many publishers have long had a default position of requiring permissions, in practice decisions are often made in relation to the purpose and kind of the use. 

Best,

CMSI