Code of Best Practices in Fair Use for the Visual Arts

college art association

Funded by the Andrew W. Mellon Foundation Additional support provided by the Samuel H. Kress Foundation Code of Best Practices in Fair Use for the Visual Arts

FEBRUARY 2015

Funded by the Andrew W. Mellon Foundation Additional support provided by the Samuel H. Kress Foundation MESSAGE FROM THE CAA PRESIDENT

The mission of the College Art Association (CAA) is to promote the visual arts and their understanding through advocacy, intellectual engagement, and a commitment to the diversity of practices and practitioners. CAA contributes to the visual arts profession as a whole through scholarly publications, advocacy, exchange of research and new work, and the development of standards and guidelines that reflect the best practices of the field. The Code of Best Practices in Fair Use for the Visual Arts is based on a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative and scholarly work and who, through discussion groups, identified best practices for using such materials. They included art and architectural historians, artists, designers, curators, museum directors, educators, rights and reproduction officers, and editors at scholarly publishers and journals. CAA is grateful to Lead Principal Investigators Patricia Aufderheide and Peter Jaszi of American University for their oversight and execution of this project, including their surveying nearly 12,000 CAA members on their use of copyrighted materials, conducting 100 interviews to identify key issues, facilitating discussions with another 120 visual arts professionals to understand and identify points of consensus concerning best practices in use of such materials and, finally, articulating that consensus in the Code of Best Practices. CAA expresses its deep appreciation to the many visual arts professionals who gave their time and expertise to this project. Special thanks are due to the other principal investigators—Linda Downs, Anne Collins Goodyear, under whose CAA presidency the project began, and Jeffrey Cunard—as well as to Gretchen Wagner, who, with Jeffrey, cochaired CAA’s Task Force on Fair Use. CAA also thanks the project advisors, the Legal Advisory Committee, the Task Force on Fair Use, its Committee on Intellectual Property, and its Professional Practices Committee for expert assistance, and Janet Landay, project manager, for orchestrating all logistics. A full list of participants is set out in the credits that follow the Code. Finally, CAA acknowledges the generous support of the Andrew W. Mellon Foundation and the Samuel H. Kress Foundation, without which this project would not have been possible.

DeWitt Godfrey President, CAA, and Professor, Art and Art History Department, Colgate University

TABLE OF CONTENTS

2 Message from the CAA President

5 Introduction 6 Why the Code? 6 When the Code Does and Does Not Apply 7 Applying the Code

9 Code of Best Practices 9 One: Analytic Writing 10 Two: Teaching about Art 11 Three: Making Art 11 Four: Museum Uses 13 Five: Online Access to Archival and Special Collections

14 Appendix A: Fair Use Today 18 Appendix B: How the Code Was Created

19 Credits 5 | CODE OF BEST PRACTICES

Introduction Assessing fair use in light of shared professional understandings is a respected light of shared professional understandings Assessing fair use in materials is a key tool for the visual The right to make fair use of copyrighted Many members of the visual arts community employ fair use in their was created with and for the visual arts with and for the visual Use was created Practices in Fair The Code of Best audiovisual materials, artworks of all kinds, Copyright protects community. use by (among other things) against unauthorized photographs, and texts assure space for to a number of exceptions designed to others, but it is subject most flexible. fair use is the most important and the Of these, future creativity. on fair use.) by Peter Jaszi presenting a perspective (Appendix A is an essay within the common situations in which there is a consensus The Code describes doctrine should about practices to which this copyright visual arts community it. practical and reliable way of applying apply and provides a practice. Invoking professional practices provides members of a community with a practices provides members of practice. Invoking professional with confidence, knowing the shared clear framework in which to apply fair use practices allows them to share their norms of their field. Having a code of best publishing entities, distributors, common understandings with others—including on which they depend. In addition insurers, and lawyers—who may make decisions a code can assist institutions and their to serving as a useful tool for individuals, policies that reflect their particular counsel in applying the doctrine and developing it may a code provides guidance to rights holders as to when concerns. Further, in light of an appropriate invocationnot make sense for them to claim infringement although a code cannot control the judicial interpretation of of fair use. Finally, with best practices in a professional fair use, it helps courts to become familiar fair use. community when called upon to rule on although its members may not always choose to take advantage of arts community, for instance, to maintain relationships,it. They may still seek copyright permissions, to obtain access to material needed for to reward someone deemed deserving, or including those described in the Code, their purposes. But, in certain other cases, of copyrighted material in order to they may choose instead to employ fair use accomplish their professional goals. For instance, scholars and their professional practices and many do so regularly. editors employ fair use in the context of analytic writing (for example, in using rely on it—along reproductions of copyrighted artworks and quotations). Teachers with other copyright exceptions—to show images of works being discussed during relevant images for student use to provide class sessions, and, even more heavily, outside class. In the museum context, fair use may be employed in exhibitions and publications, and in a range of digital and educational projects. Artists may employ fair use to build on preexisting works, engage with contemporary culture, or provide the entire visual arts community benefits And artistic, political, or social commentary. WHY THE WHY CODE? WHEN THE CODE DOES AND DOES NOT APPLY APPLY DOES AND DOES NOT THE CODE WHEN The Issues Report, which was based on their interviews with 100 visual arts The Issues Report, which was based on in developing codes of best of the success of other communities Aware Fair use is part of US copyright law, and the Code applies to the activities of and the Fair use is part of US copyright law, members of the visual arts community who use copyrighted works in the US in furtherance of their professional goals. The Code applies to any copyrighted work used in the United States regardless of whether the work originated outside the United States. The Code does not apply to reproductions, distributions, Artists, scholars, teachers, museum professionals, and others represented in the and others represented professionals, teachers, museum Artists, scholars, producers of copyrighted are significant Association membership College Art the value of promoting rights. CAA recognized they value their own works and of fair use. its members about the appropriate exercise greater certainty among underscored by the uncertainty on this point was The risk posed by widespread should routinely that users of copyrighted material common default expectation uses. CAA potential legal liability for unauthorized seek permission to eliminate limit the work of the that such a culture of permissions could members were aware in a digital and, as a result, deprive the public, especially visual arts community professors at Patricia Aufderheide and Peter Jaszi, era. CAA therefore engaged use, to assess the and leading experts in copyright and fair American University the use of third-party practices with respect to current state of the community’s from the copyrighted materials. In 2014, thanks to generous preliminary funding Mellon grant from the Andrew W. Samuel H. Kress Foundation and a major Jaszi to prepare “Copyright, Permissions, Foundation, CAA asked Aufderheide and Arts Artists and the Academic and Museum Visual and Fair Use among Visual Communities: An Issues Report.” professionals and a survey of CAA members, reported that the practices of many professionals and a survey of CAA members, due to the pervasive perception professionals in the visual arts are constrained are required even where a confident that permissions to use third-party materials Most commonly the decision not to rely exercise of fair use would be appropriate. themselves. Although members of on fair use is made by visual arts professionals instances, they may self-censor in the community may rely on fair use in some about fair use, leading them others, due to confusion, doubt, and misinformation to self-censorship due to specific, on permissions. (This is in contrast to over-rely as a personal relationship with an non-copyright-related circumstances, such to realize their own full potential, as well artist.) Doing so jeopardizes their ability whole. as that of the visual arts community as a practices in fair use, and of the opportunity that best practices present to help decided to create such a code for the CAA shape the application of fair use law, described in Appendix B. The methodology is visual arts community. from fair use when it enables enhanced access to archival materials. These are only These are materials. to archival access enhanced it enables fair use when from arts practice. to visual use is central which fair ways in common of the most some

6 | CODE OF BEST PRACTICES 7 | CODE OF BEST PRACTICES

APPLYING THE CODE APPLYING Likewise, the Code refers users to generally applicable professional standards, The Code is not applicable to—and is not needed for—uses of material for for—uses of material is not needed is not applicable to—and The Code for—the use of not a guide to—and, again, is not needed the Code is Similarly, to works for which users can obtain In practice, fair use can be applied only not apply to the extent that a license Fair use and, therefore, the Code, also do which, in turn, may evolve over time. This is the case, for example, where it invokes the concept of “appropriate metadata” (which might include information Fair use can be applied consistently based on logical principles grounded in factual Fair use can be applied consistently based contexts. The Code describes an approach to reasoning about the application of fair use to issues both familiar and emergent. It does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. For instance, it does not prescribe a uniform size or resolution for digital images that might be appropriate it calls on a user to consider context in deciding what for all online uses. Rather, professional image size should be employed for any new use, in light of the user’s goals and other considerations. laws may apply. apply. laws may as broader public, such been granted to the already have which permissions for a range advance permission which provide Commons licenses, through Creative license by the applicable works in ways authorized may use such of uses. Anyone fair use for other kinds of uses, where appropriate. but may also invoke domain material is not public domain. By definition, public material that is in the According to and may be used without regard to copyright. protected by copyright Supp. Corel Corp., 36 F. v. decision in Bridgeman Art Library the reasoning of the material also includes faithful copyright-free ), moreover, 1999 2d 191 (S.D.N.Y. are distinct from of two-dimensional artworks, which photographic reproductions not on its face apply to still does Bridgeman, however, the artworks they depict. architecture, and works, such as sculpture, photographs of three-dimensional might be used pursuant to fair performance art. Nevertheless, such photographs set forth in the Code. use in light of the principles and limitations of visual art, to reproductions, such as access, including, for example, in the case sought permission must be however, analog slides or digital images. Sometimes, an art object or reproductions thereof— simply because a “sole source” controls domain. Because demands for permis- even where the work itself is in the public copyright, fair use cannot be invoked to sion fees in this context are not based on avoid paying such fees. or other use. Thus, for example, agreement or other contract controls reproduction by donors, and museums must comply archives must abide by restrictions imposed contracts that supersede fair with provisions for rights clearance in distribution in the “fine print” of agreements that use. Sometimes such terms may be found may otherwise be noncontroversial. performances, and other uses outside the United States, including web-based web-based including States, the United uses outside other and performances, countries’ which those to other countries, toward targeted uses specifically Finally, it is important to emphasize that decisions about whether to utilize about whether to utilize that decisions important to emphasize it is Finally, best practices states five consensus principles that reflect The Code that follows the Code does not describe all the situations in which fair More specifically, the principles of the Code are not affected or limited by the possibility that others by the possibility not affected or limited of the Code are the principles law has in question. As the material further uses of the copyrighted may make and a book illustration uses (scanning such “downstream” been interpreted, rise to legal consumer goods, for example) do not give placing the image on have relied of visual arts professionals who themselves liability on the part are not actively use in making the material available and appropriately on fair misuse of it by others. aware of widespread Each of the principles arts community in applying fair use. by members of the visual to application of the associated limitations, which are integral is given shape by its about which there was includes only principles and limitations principle. The Code As a result, the discussion groups’ participants. consensus among near-universal they are not necessarily exhaustive. it addresses Rather, visual arts community. use might be available to members of the of the community encounter. only the most common situations that members and limitations are, of course, subject principles By the same token, the Code’s to interpretation. about the title, artist, date, medium, provenance, current location, ownership, ownership, location, current provenance, medium, artist, date, the title, about according may differ of which the meaning of a work), characteristics and other to context.

8 | CODE OF BEST PRACTICES 9 | CODE OF BEST PRACTICES ONE: ANALYTIC WRITING WRITING ONE: ANALYTIC The Code of Best of Practices: Code The Analytic writing focuses attention on artists, artworks, and attention on artists, artworks, and Analytic writing focuses In their analytic writing about art, scholars and other writers (and, In their analytic writing about art, scholars Situations, Principles, and Limitations Principles, Situations, The writer’s analytic objective should predominate over that of merely The writer’s works used. the work or representing Justifications for use and the amount used should be considered especially carefully in connection with digital-format reproductions of born-digital works, The amount and kind of material used and (where images are concerned) the size and resolution of the published reproduction should not exceed that appropriate to the analytic objective. The writer’s use of the work, whether in part or in whole, should be justified The writer’s by the analytic objective, and the user should be prepared to articulate that justification.     movements; it includes analyses of art within larger cultural, political, and analyses of art within larger cultural, movements; it includes in full or in Such writing routinely includes reproductions, theoretical contexts. digital phenomena, in all media, texts, historical images, part, of relevant artworks be drawn This material—much of it copyrighted—may and other visual culture. and archives including the collections of libraries from a variety of sources, and photographs taken here as “memory institutions”), notes (generally referred to or published by others; some and documentary reproductions created by the writer, Sometimes the visual formats and others are born digital. works start out in analog with analytic writing are the specific or textual works reproduced in connection used to illustrate larger points about subjects of analysis. Sometimes they are a particular point or conclusion. artistic trends and tendencies, or to document academic venues and in ever- Such writing is published both within traditional published in a variety of formats, expanding venues beyond them. It may be journals, exhibition catalogues, collection including print and electronic books and and contributions to collaborative digital catalogues, blog and social media posts, reside in institutional repositories), or projects, such as wikis (which projects often or on similar occasions. The effectiveness it may be delivered at academic meetings by the reproduction of the materials that of analytic writing about art is improved for works of visual art, writers may it references. In many instances, particularly work may be the most appropriate way to conclude that reproduction of an entire make their points. n n n n PRINCIPLE DESCRIPTION Limitations by extension, their publishers) may invoke fair use to quote, excerpt, or reproduce by extension, their publishers) may invoke copyrighted works, subject to certain limitations:

TWO: TEACHING ABOUT ART ABOUT ART TEACHING TWO: Teaching about art in studio and classroom settings, whether in in studio and classroom settings, whether about art Teaching Teachers in the visual arts may invoke fair use in using in the visual arts may invoke Teachers If providing downloadable images online is justified by the teacher’s objectives, If providing downloadable images online is justified by the teacher’s those images should be suitable in size for satisfactory full-screen projection or display on a personal computer or mobile device, but generally not larger. Images made available to students should, to the extent possible, accurately represent the works they depict. Student access to course management sites where such works are made available Student access to course management sites where such works are made available should be restricted to those enrolled in the course or otherwise designated by the teacher. The teacher’s pedagogical objective should predominate over that of merely pedagogical objective should The teacher’s representing the work or works used. The writing should provide attribution of the original work as is customary in work as is customary of the original should provide attribution The writing to the extent possible. the field, Reproductions of works should represent the original works as accurately as can works as accurately represent the original of works should Reproductions under the circumstances. be achieved where there is a heightened risk that reproductions may function as substitutes as substitutes function may reproductions risk that heightened there is a where originals. for the The works selected should further the teacher’s substantive pedagogical objectives. The works selected should further the teacher’s        academia or elsewhere, has historically been achieved using reproductions of has historically been achieved using academia or elsewhere, beyond technology has extended the classroom Today, artwork as illustrations. while also may show digital slides or video in classrooms, four walls: teachers to students online by that are related to their courses available making such works institutions also offer of course management platforms. Some means, for example, specific copyright conducted entirely online. Although their students art courses fulfillment of their for some teaching activities, teachers’ exceptions are available scope of those exceptions. Even where mission often is frustrated by the narrow face-to-face teaching or distance these exceptions may be adequate to cover many forms of pre- and post-class support education in real time, they fail to cover In support of their teaching activities, that teachers wish to provide to students. collections of exemplary teachers in the visual arts long have maintained documentation for their own use and that of their students. Sometimes these documentation for their own use and that sometimes in departmental or other are maintained in their personal files and who maintain such files generally agree institutional reference collections. Those with peers or related institutions, broadly, that they would prefer to share them more to create more powerful teaching resources. n n n n n PRINCIPLE DESCRIPTION n n Limitations copyrighted works of various kinds to support formal instruction in a range of copyrighted works of various kinds to support teaching and for reference collections settings, as well as for uses that extend such that support it, subject to certain limitations:

| CODE OF BEST PRACTICES 10 | CODE OF BEST PRACTICES 11 THREE: MAKING ART THREE: MAKING FOUR: MUSEUM USES FOUR: MUSEUM USES Museums regularly curate and organize temporary or permanent For centuries, artists have incorporated the work of others For centuries, artists

Artists may invoke fair use to incorporate copyrighted material into Artists may invoke fair use to incorporate When copying another’s work, an artist should cite the source, whether in the When copying another’s new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so. Artists should avoid suggesting that incorporated elements are original to them, Artists should avoid suggesting that incorporated unless that suggestion is integral to the meaning of the new work. The use of a preexisting work, whether in part or in whole, should be justified The use of a preexisting work, whether in deliberately repurpose copyrighted by the artistic objective, and artists who rationales both for doing so and for works should be prepared to explain their the extent of their uses. Artists should avoid uses of existing copyrighted material that do not generate Artists should avoid uses of existing copyrighted change of medium, without more, may new artistic meaning, being aware that a not meet this standard. Access to an institutional reference collection should be limited to persons be limited to persons collection should institutional reference Access to an such as students, and its partner institutions, with the institution affiliated in the that items subject to a requirement authorized researchers, and faculty, used only for legitimate purposes. collection should be Images and other items in a reference collection should be augmented with be augmented collection should other items in a reference Images and metadata. and reasonably available appropriate When displayed, images should be accompanied by attribution of the original the original of by attribution accompanied be images should displayed, When possible. the extent field, to in the as is customary work        (i.e., long-term) exhibitions, which include works from their own, other institutional, and private collections. Exhibitions can generate new artistic and scholarly insights exhibitions and attract and enhance the experience of museum visitors. Frequently, as part of their creative practice. Today, many artists occasionally or routinely many artists occasionally or practice. Today, as part of their creative in their own artworks and other cultural productions reference and incorporate culture, which is part of the construction of new creations. Such quotation interpretation of existing culture. It often provides a new necessarily builds on Increasingly, may (or may not) be deliberately confrontational. existing works, and existing (including digital) works into artists employ digital tools to incorporate and collage (remix), to the creationtheir own, making uses that range from pastiche this copying is of a kind that might of new soundscapes and lightscapes. Sometimes whatever the technique, and whatever infringe copyright, and sometimes not. But images, text, or sounds), new art may be used (from motifs or themes to specific can be generated. DESCRIPTION n n n n PRINCIPLE DESCRIPTION n n n Limitations new artworks in any medium, subject to certain limitations: new artworks in any medium, subject to Museums and their staffs may invoke fair use in using copyrighted Museums and their staffs may invoke fair Images and other documentation of museum collections should be associated with all appropriate and reasonably available metadata. Images provided to the public should be accompanied by attribution of the original work as is customary in the field, to the extent possible. When image details and support for “close looking” are offered online through large or high-resolution images, downloading should not be facilitated unless a special justification is present. Downloadable images made available online should be suitable in size for full-screen projection or display on a personal computer or mobile device, but generally not larger. The amount of a work used in museum publications, the size and resolution of The amount of a work used in museum fidelity of those reproductions should published reproductions, and the level of purpose. be appropriate to the analytic or educational When copyrighted works are used in connection with physical or virtual When copyrighted works are used in connection by the curatorial objective, and the user exhibitions, the use should be justified should be prepared to articulate that justification.       n n n n n n PRINCIPLE may enhance or confirm the reputations of the artists whose work is included. is included. whose work artists of the the reputations confirm or may enhance with associated materials and graphic print prepare also routinely Museums of related and reproductions that display text including wall panels exhibitions, and guides; publish catalogues; and educational available brochures images; make offer various museums also public programs. Many lectures and other offer related images for that reproduce accessible databases) (including publicly kinds of guides are they Increasingly, permanent collections. of the works in their many or all For example, using digital and other new technologies. doing all these things and collections with information about exhibitions visitors may access electronic be networked. portable device, which may their own or a museum-supplied educational or may access exhibition- and collection-related and students Teachers website and (text, mixed media, and video) on the museum’s curricular materials and nonprofit or through third parties, including for-profit social media channels, counterparts or exhibitions may be complemented by virtual publishers. Physical through” the so that remote visitors can virtually “walk online enhancements focus their attention the curatorial narrative, and, if desired, galleries, appreciate online documentation of collections (including on particular works. Similarly, and metadata) can help to place collection catalogues and databases of images or cultural context and provides some individual artworks in a larger institutional museum, as well as providing access to of the benefits of a physical visit to the Such documentation also may prepare the material not currently on display. with art when they visit the museum members of the public to interact more fully in person. Limitations works, including images and text as well as time-based and born-digital material, works, including images and text as well to certain limitations: in furtherance of their core missions, subject

| CODE OF BEST PRACTICES 12 | CODE OF BEST PRACTICES 13

IN MEMORY INSTITUTIONS IN MEMORY Many institutions, including academic libraries, art schools, academic libraries, art including Many institutions, Memory institutions and their staffs may invoke fair use to create Memory institutions and their staffs may FIVE: ONLINE ACCESS TO RELATED COLLECTIONS COLLECTIONS RELATED TO ACCESS FIVE: ONLINE Materials made available should be accompanied by attribution as is customary Materials made available should be accompanied by attribution as is customary in the field, to the extent possible. When provided, downloadable images provided online should be suitable in size When provided, downloadable images provided online should be suitable in size and resolution for full-screen projection or display on a personal computer or mobile device, but generally not larger. Institutions should prominently offer such users a point of contact for further Institutions should prominently offer such should respond promptly to user information and correspondence and they complaints, corrections, and questions. Material made available online should be redacted to protect the privacy and Material made available online should be in accordance with prevailing other noncopyright interests of third parties, professional standards. Images and documentation of museum collections should honor institutional honor institutional should collections of museum and documentation Images the including parties, of third interests noncopyright to protect designed policies of communities. cultural sensitivities individuals and the privacy of Visitors to the site should be informed that the materials they access are provided Visitors that they are responsible for for their personal and/or scholarly use, and may be required for their own further obtaining any copyright permissions that uses of that material. Items should be augmented with all appropriate and reasonably available metadata.        museums, archives, and study centers, maintain collections of art-related of art-related and study centers, maintain collections museums, archives, documentation, including the sketches and studies, manuscripts, financial records, the sketches and studies, manuscripts, documentation, including dealers, and and book collections of artists, collectors, personal photographs, by donation to use restrictions, including those imposed others. Unless subject documentation institutions typically make such agreements, these memory of the public. personal copying by scholars and members available for study and unpublished and and often unique study material—some Much of this valuable Online access to rights holders—may be under copyright. some difficult to trace their utility for of these collections greatly expands resulting from digitization it also contributes to the protection of scholars, students, artists, and the public; and decay. disaster, the information they contain against theft, n n n n n n PRINCIPLE DESCRIPTION n Limitations digital preservation copies and to enable digital access to copyrighted materials in digital preservation copies and to enable available online, with appropriate their collections and to make those collections search tools, subject to the following limitations:

* Fair use is the most important limit † Appendix A: Fair Use Today Use Fair A: Appendix That is why there is a social bargain at the heart of copyright law. That bargain law. social bargain at the heart of copyright That is why there is a provides, “ fair use of a copyrightAs Section 107 of the Copyright Act of 1976 the amount and substantiality of the portion used in relation to the copyrighted work as a work substantiality and the amount of the portion the copyrighted to used in relation whole; and the purpose and character of the use, including whether such use is of a commercial nature or nature whether such use is of a commercial including the purpose and character of the use, purposes; educational nonprofit is for § 107. Limitations on exclusive rights: Fair use Fair rights: on exclusive § 107. Limitations

4. the effect of the use upon the potential market for or value of the copyrighted work. copyrighted value of the for or market of the use upon the potential 4. the effect fact is unpublished shall not itself bar a finding of fair use if such finding is made The a work that factors. of all the above upon consideration 2. the nature of the copyrighted work; of the copyrighted 2. the nature 3.  Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,of sections Notwithstanding 106A, the fair use of a copyrighted 106 and the provisions other means specified any or by or phonorecords in copies reproduction including such use by (including teaching reporting, news purposes section, such as criticism, that comment, by for of copyright. is not an infringement or research, use), scholarship, classroom for multiple copies particularIn in any whether the use made of a work determining case is a fair use the factors to shall include—be considered 1.  on copyright monopoly rights. It has been part of US copyright law for more than on copyright monopoly rights. It has been and not a mere privilege. Because 170 years. Where it applies, fair use is a right terms, the fair use doctrine can adjust to copyright law describes fair use in general it is asserted procedurally as an affirmativeevolving circumstances, and the fact that defense should not affect this characterization. † Peter Jaszi wrote this section and is solely responsible for it. * Peter Jaszi wrote this section and is solely responsible Some background information about the fair use doctrine, seen in the context of seen in the about the fair use doctrine, information Some background to use the thinking about how may be helpful in law and its objectives, copyright of knowledge copyright law is to promote the progress Code. The goal of US rights. But copying, feature is protection of owners’ and culture. Its best-known can be critically and reusing existing cultural material quoting, recontextualizing, and spreading knowledge and culture. important to creating is: Our society offers creators some exclusive rights in copyrighted works, to creators some exclusive rights in copyrighted is: Our society offers creators receive from culture. The compensation that encourage them to produce ultimate end; is important as an incentive to this exploiting their copyrights ways, so that Society also limits copyright in important it is not an end in itself. law—the public—can benefit from the primary intended beneficiary of copyright copyright lasts for a limited time, and then works those works. Most basically, free for use by all. Other limitations allow enter the public domain, where they are without permission or payment to the the use of works protected by copyright creative and scholarly activities would suffer, those uses, Without copyright owner. new work that builds on the past. and the public would lose out on important work… is not an infringement of copyright.”

| CODE OF BEST PRACTICES 14 | CODE OF BEST PRACTICES 15 Judicial decisions on fair use can give practitioners strong positive guidance strong positive guidance give practitioners on fair use can Judicial decisions By the case law has taken a dramatic turn. s, however, Since the early 1990 that for a use to be considered Since then, cases have reinforced the notion statutory factor (looking to “purpose Where a use is transformative, the first Note that although the factors are often viewed as representing the four corners of fair use Note that although the factors are often viewed as representing the four corners of fair use analysis, the list is made explicitly nonexclusive; thus, courts can and (from time to time) do take other considerations into account, including the “public interest,” in allowing the use under consideration to go forward. This may be of particular relevance to educational users the and those associated with memory institutions, who can marshal strong arguments about social utility of their activities. , Congress inscribed the venerable the doctrine. In 1976, Congress inscribed about how to apply “four factors.” It also Section 107, codifying the familiar judge-made rule into to be treated listing examples of uses that were eligible included a preamble, . . . teaching, of these (like “criticism, comment, some (as fair use. Notably, arts professionals. are core activities of many visual scholarship, [and] research”) court decade of generally cautious and even conservative There then ensued a for those who make question the real utility of the doctrine opinions, calling into and comment on culture. the strong connection between fair use 2002, when the US Supreme Court affirmed Ashcroft , 537 U.S. 186 in Eldred v. and First Amendment freedom of expression In the interven- dramatically. (2003), the doctrinal landscape already had changed generally critical consideration in evaluat- ing time, the courts had indicated that a can be considered “transformative”— ing the fair use factors is whether the use as with a further purpose or different character,” whether it “adds something new, Acuff-Rose Music, 510 U.S. 569 (1994). the Supreme Court put it in Campbell v. it usually does not—entail a literal “transformative,” it need not—as, in fact, material. Instead, it is crucial that it has modification or revision of the original it performs a new function. Thus, the put that material in a new context where argument of a scholarly article could reproduction of an image to illustrate the just as could the use of copyrighted material in new art. qualify, of fair use even if the new use is and character”) will weigh strongly in favor of the The second factor (which implicates the nature “commercial” in character. uses as well. This factor functions to work used) tends to favor transformative protection from unfair exploitation; provide certain imaginative works extra this concern loses much of its force when they are used for new purposes. however, where the third factor is concerned, courts will measure the appropriateness Moreover, of the amount of copyrighted material used against the transformative purpose of As a comparison, for example, freedom of expression is a right that is also asserted is also a right that is of expression freedom for example, comparison, As a and lawyers a formula, following than cases. Rather defamation in as a defense according material is “fair” use of copyrighted whether a particular judges assess and into account all facts This means taking rule of reason.” to an “equitable material generates use of copyrighted to decide if an unlicensed circumstances owner. on the copyright than the cost imposed benefits greater social or cultural 3d 3d 605 3d 1364 (1st Cir. ). 2000 Cir. (1st 3d 18 ). But, conversely, ). But, conversely, 2007 th Cir. 9 1146 ( d 3 508 F. , Inc. v. Amazon.com, Inc., Amazon.com, 10, Inc. v. And crucially, a transformative use is likely to weigh in favor of fair use under in favor of fair use use is likely to weigh a transformative And crucially, Where a use is deemed nontransformative, the market-harm test of factor Where a use is deemed nontransformative, in the case law have been questionedAs might be expected, these developments controversy remains about how fair use should apply to so-called Certainly, In general, there has never been as strong a general judicial consensus about ), which involved graphic art reproduced to illustrate a historical art reproduced to illustrate a historical ), which involved graphic 2006 (2d Cir. in use of reference images (so-called “thumbnails”) narrative. The unlicensed an example being has been found to be fair on this basis, internet search engines Perfect that use; where visual imagery is concerned, use of an entire work often will often will work of an entire use is concerned, visual imagery where that use; F. ., 235 News Corp Int‘l Caribbean v. as in Nunez qualify, suffered by the copyright the market harm factor (directed toward the fourth have recognized) copyright numbers of courts (as increasing holder), because works, markets” for their the “transformative not entitled to control owners are F. Kindersley Ltd., 448 Dorling Archives v. by Bill Graham as exemplified the transformativeness test also safeguards rights holders from the invasion of test also safeguards rights holders from the transformativeness they are entitled to markets or potential markets that commercially significant in a copyright owner’s merely substitutes for an authorized use exploit. When a use chosen and used for the photographic image of a statue core market, for example, , 595 F. United States postage stamp in Gaylord v. its visual appeal on a 2010), it is less likely to be considered fair. (Fed. Cir. in the analysis. Thus, for example, four is likely to play a more important role summaries of various artists’ careers adopted failure to license a textbook author’s against a fair use finding. Alternatively, from a proprietary website could weigh is not being actively exploited might the reproduction of an “orphan” work that be deemed fair on the same grounds. test as too subjective in its by some, who have criticized the transformativeness of copyright owners are concerned) in application, too harsh (where the interests fact that copyright owners are granted effect, and somehow inconsistent with the works” under Section 106(2) of the an “exclusive right” to “prepare derivative well justified some of these objections are. Copyright Act. Only time may tell how all the exclusive rights granted in Section But, as to the last, it is worth noting that work right should be any less 106 are qualified. It is not clear why the derivative rights of “reproduction,” “distribution,” subject to fair use than, for example, the or “performance.” appropriation art, the case law concerning which was discussed at some length in the Issues Report that helped frame the issues addressed in this Code. The Prince, 714 F. particular application of the transformativeness test in Cariou v. overpainting of 2013), involving new works created by defendant’s 694 (2d Cir. book, continues to attract critics as well as photographs taken from plaintiff’s defenders. This Code offers a balanced approach to invoking fair use in this area of visual arts practice, as in others. In making fair use the nature of the fair use doctrine as the one that exists today. judges decisions about issues such as those that confront the visual arts community,

| CODE OF BEST PRACTICES 16 | CODE OF BEST PRACTICES 17 In other words, if the answer to these two questions is clearly in the affirmative,In other words, if the answer to these two helpful to the fair use argument for Court decisions also show that it can be to wish for clearer rules or brighter The flexibility of fair use can lead users disagree on how much a user’s it is worth noting that legal experts Finally, Was the material taken appropriate in kind and amount, considering the nature considering in kind and amount, taken appropriate the material Was and the use? copyrighted work of both the Did the use “transform” the copyrighted material by using it for a purpose it for by using material the copyrighted use “transform” Did the did it do no more than of the original, or different from that significantly for the original? with a “substitute” provide consumers   These two questions effectively collapse the four factors. The first question contains The first question collapse the four factors. questions effectively These two work used. Thus, purpose of the use and nature of the the first two factors—the against fair use if a nature of a work could weigh for example, the unpublished for gratuitous and private letters were being used copyrighted deceased artist’s were for an academic it should have little bearing if the use sensational effect, but the third factor, purpose. The second question rephrases (and thus transformative) Both of the key and quality of the material used. which looks to the quantity harm the use will cause focusing on economic fourth factor, questions touch on the made it clear that market. This is because courts have relevant to the owner’s Thus, if Artist B’s is what matters in applying factor four. substitutional harm works, A’s works actually supplant purchases of Artist of Artist A’s “parodies’’ work, as a result, loses popularity A’s that might result in such harm, but if Artist that would not. or marketability, Where that even if the work is used in its entirety. a court is likely to find a use fair, that it ought not to challenge the use. is the case, a rights holder also might conclude or context of the use. The case law the user to explain the new function, purpose, account the user can give of how and further suggests that the more coherent an work, the easier it is for judges why it was appropriate to employ the copyrighted use would be considered transformative. to understand if and whether and why the strength. Courts have emphasized that fair lines. But the flexibility of fair use is its quite it is also In most cases, however, use analysis is fact- and situation-specific. specifically it can be made more so. Even without case law predictable. Moreover, expectations and practice—whether addressing a use, judges and lawyers consider in light of standards of accepted the user acted reasonably and in good faith creating better understanding of what fair practice in a particular field. One way of of use permits is, therefore, to document the considered attitudes and best practices a professional community. show of good faith adds to a claim of fair use—although, of course, it cannot hurt. Nevertheless, the members of the visual arts community who met to devise the consensus reflected in the Code believed in its importance. Thus, the Code reflects some widely and strongly held community values not tied to language of the Copyright Act, in particular the importance of attribution, and of safeguarding noncopyright interests such as privacy and cultural sensitivities (including those of indigenous communities). n n today generally focus, in effect, on two key analytic questions: questions: two key analytic effect, on focus, in generally today Appendix B: How The Code Was Created Created Was Code The B: How Appendix In each session, participants considered issues drawn from the situations considered issues drawn from the In each session, participants the areas of consensus identified The facilitators summarized, in a draft code, Chicago, and Los Angeles— DC, Dallas, Washington, York, In five cities—New facilitators met with visual arts professionals, each of ten to fourteen two groups, Each group closed, deliberative discussions. for four-hour, Aufderheide and Jaszi visual arts, including from across the spectrum of the brought together practitioners They were asked to professionals, editors, and others. artists, scholars, museum organizations. rather than as representatives of particular speak as individuals of participants’ anonymity and the confidentiality encourage open discussion, To were guaranteed. their individual views described in the Issues Report. Participants discussed their reasons for using Report. Participants discussed their reasons described in the Issues missions, they in such situations and, in light of their third-party materials group considered areas of consensus explored the limits of those rationales. Each as well as points that had not been identified in previous groups’ discussions clarified fully in those earlier discussions. investigators, the project advisors, in the discussion groups. The other principal and its Force on Fair Use, its Committee on Intellectual Property, Task CAA’s and provided comments on that draft. Professional Practices Committee reviewed the draft Code was presented to a Legal After a further revision by the facilitators, law and fair use. That committee Advisory Committee of five experts in copyright articulation of principles and limitations was charged with ensuring that the Code’s generally consonant with fair use doctrine.fell within the bounds of reason and was the exception comments. With committee’s The Code was then revised in light of the represents the individual views of any of Appendix A, no part of this document presented The final version of this document, including the Code, was contributor. Art Association, which approved it on to the Board of Directors of the College 2015. January 12,

| CODE OF BEST PRACTICES 18 | CODE OF BEST PRACTICES 19 * Credits

Co-Director, Bowdoin College Museum of Art, and Past President, Bowdoin College Museum Co-Director, Washington College of Law, Program on Information Justice and Program on Information Justice College of Law, Washington Professor, School of Communication, and Director, Center for Media & Center and Director, School of Communication, Professor,

former General Counsel, ARTstor, and member, Committee on Intellectual Committee and member, former General Counsel, ARTstor, Partner, Debevoise & Plimpton LLP, and Counsel, College Art Association Debevoise & Plimpton LLP, Partner, Partner, Debevoise & Plimpton LLP, and Counsel, College Art Association and Counsel, Debevoise & Plimpton LLP, Partner, Executive Director and CEO, College Art Association Executive Director and MEMBERS COCHAIRS Social Impact, School of Communication, American University Social Impact, School of College Art Association Property, College Art Association Property, Project Manager Project College Art Association Janet Landay, Project Advisors Project Visual Resources: An International Journal of Documentation Visual Christine Sundt, Editor, Illinois Western Department of Art, Professor of Sculpture and Chair, Charles A. Wright, President for Committees, College Art Association and Vice University, Allen Whitehill Clowes Professor of Fine Arts and of African and African Allen Whitehill Clowes Professor of Fine Arts Suzanne Preston Blier, President for Publications, and Vice American Studies, Harvard University, College Art Association Linda Downs, Executive Director and CEO, College Art Association Art and Art History, Associate Professor of Sculpture, Department of Godfrey, DeWitt and President, College Art Association Colgate University, Bowdoin College Museum of Art, and Past President, Co-Director, Anne Collins Goodyear, College Art Association and Southern Methodist University, Department of Art History, Randall C. Griffin, Professor, President for Publications, College Art Association former Vice College Art Association Joe Hannan, Editorial Director, Betty Leigh Hutcheson, Director of Publications, College Art Association 2014–16, Center for Advanced Study in the Mellon Professor, Paul Jaskot, Andrew W. College of Liberal Arts and Arts; Professor of the History of Art and Architecture, Visual President, College Art Association Social Sciences, DePaul University; and former Art Museum, and former Secretary, Wichita Patricia McDonnell, Executive Director, College Art Association Gretchen Wagner, Gretchen Wagner, Task Force on Fair Use on Fair Force Task Cunard, Jeffrey P. Anne Collins Goodyear, Anne Collins Goodyear, Linda Downs, Principal Investigators Principal Cunard, Jeffrey P. Peter Jaszi, Professor, Peter Jaszi, Professor, Lead Principal Investigators Investigators Principal Lead Patricia Aufderheide, Professor and Chair, Interdisciplinary Arts, Columbia College, and former Chair, Interdisciplinary Arts, Columbia College, and former Chair, Paul Catanese, Professor and Chair, New Media Caucus, College Art Association Resources: An International Journal of Documentation Visual Christine Sundt, Editor, Intellectual Property, American University Intellectual Property, um of Art Art Association blications, College r for Byzantine Art, Metropolitan Muse Faculty of Law, University of British Columbia Faculty of Law, r, former General Counsel, ARTstor Professor and Chair, Interdisciplinary Arts, Columbia College, and former Chair, and former Chair, Interdisciplinary Arts, Columbia College, Professor and Chair, Chair, Department of Art, University of Maine , Chair, s, Mary and Michael Jaharis Curato ichael Grillo HAIRS MEMBERS C CHAIRS MEMBERS *Institutional affiliations are provided for purposes of identification only. , Art + Design, School of Visual and Performing Arts, Purdue University Dennis Ichiyama, Professor, Art + Design, School of Visual and Performing Arts Engine, University of Michigan Bruce M. Mackh, Mellon Research Project Director, College Virginia Maksymowicz, Associate Professor of Sculpture at Franklin & Marshall Denise Mullen (ex officio, as CAA board liaison), President, Oregon College of Art and Craft Linda Downs (ex officio, as staff liaison), Executive Director and CEO, College Art Association Charles A. Wright (ex officio, as CAA Vice President for Committees), Professor of Sculpture and Department of Art, Western Illinois University Chair, Legal Advisory Committee Counsel, Cowan, Liebowitz & Latman, P.C. Richard Dannay, Cristina del Valle, Senior Associate Counsel, Metropolitan Museum of Art, New York Lauryn Guttenplan, Associate General Counsel, Smithsonian Institution Steven J. McDonald, General Counsel, Rhode Island School of Design University Chicago School of Law Loyola Matthew Sag, Professor of Law, New Media Caucus, College Art Association Boston Arts of the Americas, Museum of Fine Arts, Elliot Bostwick Davis, John Cabot Chair, Helen C. Evan New York Elaine Koss, freelance editor, Collection, Resource Visual History and Coordinator, Anne Norcross, Assistant Professor of Art University Kendall College of Art and Design, Ferris State (retired), Metropolitan Museum of Art, New York Doralynn Pines (ex officio, as CAA board liaison), College Art Association and Secretary, Office US Patent and Trademark Cynthia Underwood, Patent Examiner, Gretchen Wagne Michigan University Professor of Art, College of Fine Arts, Western Jim Hopfensperger, Art History and Design, Michigan State University Tom Berding, Association Professor, Paul Catanese, M Charles A. Wright (ex officio, as CAA Vice President for Committees), Professor of Sculpture and (ex officio, as CAA Charles A. Wright University Illinois Department of Art, Western Chair, Committee Practices CAA Professional Partner, Debevoise & Plimpton LLP, and and LLP, Debevoise & Plimpton board liaison), Partner, Cunard (ex officio, as CAA Jeffrey P. Counsel, College Art Association Mary DelMonico, DelMonico Books/Prestel College Art Association as staff liaison), Editorial Director, Joe Hannan (ex officio, officio, as staff liaison), Director of Pu Betty Leigh Hutcheson (ex CAA Committee on Intellectual PropertyCAA Committee Art National Gallery of Editor in Chief, Judith Metro, Chicago Press University of Executive Editor, Susan Bielstein, Clowes Professor of as CAA board liaison), Allen Whitehill Blier (ex officio, Suzanne Preston for President and Vice University, American Studies, Harvard of African and African Fine Arts and Association Publications, College Art University of Puerto Rico Nathan Budoff, Associate Professor of Art, Kenneth Cavalier,

| CODE OF BEST PRACTICES 20

21 | CODE OF BEST PRACTICES

Please feel free to reproduce this work in its this work reproduce to free feel Please fair use. please employ excerpts, For entirety. is of Best Practices Code This Readers: to Note Art the College online at Association available www.collegeart.org/fair-use. website: In conjunction CAA’s publication, with the Asked also includes Frequently website the facilitate that Questions and other materials materials and related Code The use of the Code. of on the websites online also available are Media and for Center American University’s Social Impact (www.cmsimpact.org/fair-use) Program of Law’s College Washington and the and Intellectual Justice on Information Property (www.wcl.american.edu/pijip/go/fair-use). Mellon Foundation. W. the Andrew by Funded the Samuel support H. by Additional provided Kress Foundation. www.cmsimpact.org/fair-use www.wcl.american.edu/pijip/go/fair-use www.collegeart.org/fair-use