Artists, publishers, scholars and curators depend upon fair use in the Visual Arts more than they realize. The Code of Best Practices in Fair Use for the Visual Arts was created by professionals from different fields within the Visual Arts to unified and express their interpretation of fair use.

Here are examples of uses of copyright material in the Visual Arts. Test your skill and use the Principles to draw your conclusions. Then check your answers at the bottom.

 

The Book

Jean-Claude has found an acceptable-quality copy of the public-domain painting he needs to illustrate a point he is making in his new book. The same image is available from a museum, but the museum would charge him a permissions fee. Can he use the copy he found?

Ready? Click here to find out how to decide

 

The Exhibition

Shira is mounting an exhibition that involves art that features reproductions of many corporate logos. Does she have to license those logos? Does she have to blur them out on the images representing the exhibition on the website?

Ready? Click here to find out how to decide

 

CAA Code FU Scenario Illustrations-02The Paintings

For my academic article comparing the work of two major later 20th-century painters, I have acceptable-quality reproductions of the work compared, but the journal says authors must get permissions for illustrations. Do I need permission legally? And what do I say to the journal?

Ready? Click here to find out how to decide

 

CAA Code FU Scenario Illustrations-03

Second Hand Material

For my intro art class, I’ve got slides from fellow profs and my own photos from museums, monuments, books, and websites. Who knows their copyright status! I never asked. Can I put relevant work on my class’s passworded website, for prep and post lecture study, as well as showing in class?

Ready? Click here to find out how to decide

 

CAA Code FU Scenario Illustrations-04

The Interactive Exhibit

I am a museum curator. My team is mounting an exhibition on art from 21st-century protest movements, with a web component and an interactive, online catalog. Some of this art is born-digital, some is ephemeral, some of it was created anonymously. I’ve got access to much of it already, but do I also need to seek permissions?

Ready? Click here to find out how to decide

 

CAA Code FU Scenario Illustrations-05

The News Loop

I’m an artist, working on an installation featuring a display of current top news websites in different countries. I’ve also got a loop playing below it of headline news from the week before. Do I need to ask permission from anyone to build this material into my art?

Ready? Click here to find out how to decide

 

CAA Code FU Scenario Illustrations-06

Digital Archives

I’m in our college library’s special collections unit, working on the personal archive of a regional artist. We’d like to make digitally available correspondence between the artist and various collectors and institutions. The donor’s agreement allows digital display of the artist’s materials, but many items are copyrighted to others. Can we employ fair use? How?

Ready?Click here to find out how to decide

 


 

Hot-Topic Art

Dieter can consult the Code of Best Practices in Fair Use for the Visual Arts to see if his uses are within the best practices of his field.  He will find that his peers believe that he “may invoke fair use to incorporate copyrighted material into new artworks in any medium,” with some limitations. Those limitations include (among others) the importance of being able to say what he’s doing artistically with the copyrighted material, and avoiding the implication that he is the author of the quoted material. Consulting those limitations will allow him to make a confident fair use call.

The Lecture

Wei can consult the Code of Best Practices in Fair Use for the Visual Arts to see if her uses are within the best practices of her field. Her peers find that teachers “may invoke fair use in using copyrighted works of various kinds to support formal instruction in a range of settings, as well as for uses that extend such teaching and for reference collections that support it,” given certain limitations. She can consult those limitations, which include (among others) linking her teaching objective to use of the work, choosing size and other characteristics appropriate to the teaching objective, limiting access to the people being taught, and, of course, assigning attribution. Then she can make her own decision about her fair uses for teaching. If she needs permission from the librarian or other school officials, she can explain that reasoning to them, too.

Cutting Edge Exhibit

Prasanth is part of the team putting together an exhibition on art emerging from twenty-first-century protest movements, with a web component and an interactive, online catalogue. Some of this art is born-digital, some is ephemeral, some of it was created anonymously. He has access to much of it already, but does he also need to seek permissions?

The Archive

Felishia can consult the Code of Best Practices in Fair Use for the Visual Arts to see if her uses are within the best practices of her field. Her peers find that she “may invoke fair use to create digital preservation copies and to enable digital access to copyrighted materials in their collections, and to make those collections available online,” with certain limitations. They include (among others) providing search tools for the digital display, doing due diligence to avoid violations of privacy or other noncopyright rights of others, making the digital display size appropriate to the use, and giving users a contact for feedback.

The Book

Jean-Claude does not need to pay a permissions fee, which is not a copyright charge; there is no copyright, courts have found, in a simple photographic reproduction of a flat item. And the work he wants to use for illustration has no copyright at all, since it’s public domain. He already has access to the image, as well. If he couldn’t otherwise get access to the image, he would have to pay the fees the museum asks if he wanted it.

The Exhibition

Shira doesn’t have to worry about logos at all from a copyright viewpoint. Logos are protected by trademark law, which is concerned with protecting the commercial value of a mark from competitors. Her exhibition doesn’t confuse the public about who owns the logos or suggest an endorsement by the owner of the mark.

The Paintings

To decide whether the proposed illustrations are comfortably within the fair use zone, use Section One of the Code of Best Practices in Fair Use. Look particularly at the limitations. If your uses don’t match up with the limitations, you might for instance think about reinforcing your case for fair use by creating closer links between the chosen illustration and the text. Once you are confident of your fair use justification, you are in a good position to explain to your editor at the journal why fair use is appropriate. Some journals, including those produced by the College Art Association, have changed their overall policies. For others, for instance Routledge, you may still need to make an individual case for your use. The more this happens, the more likely it is that journals change their policies to conform to the law.

Second Hand Material

For teaching uses, consult Section Two of the Code of Best Practices in Fair Use for the Visual Arts. Do your uses match up with the limitations? If not, is it possible to change your practice to better conform to the limitations? If you can justify your uses within the logic of Section Two, you are in the comfort zone for fair use. You may, however, need to explain your justification to a librarian and show them the Code, if your uses are subject to review. This is, of course, an opportunity to help the librarian understand the law today, and help you to do your work more effectively.

The Interactive Exhibit

You can consult Section Four of the Code of Best Practices in Fair Use for the Visual Arts. Consider especially the limitations. Do the choices you are making for your exhibition fall within them? If not, can you alter your practice to have them conform to the limitations? If so, you are in the fair use comfort zone. Of course, you may have non-legal concerns in this exhibition that could affect your choice to seek permission, as well–a personal or institutional relationship, for instance. But Section Four can make clear to you where the comfort zone is for applying fair use.

The News Loop

You will be helped in understanding your fair use rights by consulting Section Three of the Code of Best Practices in Fair Use for the Visual Arts. Consider especially the limitations. Do the choices you are making for your exhibition fall within them? If not, can you alter your practice to have them conform to the limitations? If so, you are in the fair use comfort zone.

The Digital Archive

You will be helped in understanding your fair use rights by consulting Section Five of the Code of Best Practices in Fair Use for the Visual Arts. Consider especially the limitations. Do the choices you are making for your exhibition fall within them? If not, can you alter your practice to have them conform to the limitations? If so, you are in the fair use comfort zone.