I work at a museum for the performing arts, primarily in their marketing department. My main job is figuring out how best to promote our special exhibits and displays online and with pamphlets and flyers. This winter we are hosting our annual dance exhibition and I’m working with our archivists and curators to create the best materials to get people to come and learn and enjoy with all of us here. None of us, however, know very much of anything about dance copyright law. Do I need formal permission to use images from some of these exhibit materials we already have in our holding on supplementary materials? In some cases, we don’t even know who created or donated the material, much less who the copyright holder is.
Both the exhibition itself and the promotional and educational material around it will benefit by your understanding how the copyright doctrine of fair use–the conditioned right to employ unlicensed material–functions for your purposes. Let me first point you in the direction of what will likely be your greatest resource, Best Practices in Fair Use of Dance-Related Materials, created by dance archivists with the help of American University’s Washington College of Law. This best practices code seems like it would be indispensable to you and your colleagues. Since it sounds like you are primarily involved in creating ancillary materials, go first to Item Two in the ‘Recurring Contexts’ section about Exhibition. Take a look at what you want to do, and align your uses with the principles and limitations of fair use recommended by your peers. In general (though you need to look closely at your own uses before deciding), curatorial decision-making is protected through the fair use doctrine because of its cultural and educational functions. This protection also extends to ancillary materials because by their very nature exhibitions are transformative. But pay attention to the limitations. Fair use may also apply if you’re planning to record or document the exhibition experience as Item 3 shows. As the Code dictates, ‘Critical and scholarly use of copyrighted material in a presentation qualifies as fair use under copyright law, as long as the material used is essential to the project.’ Also, since fair use generally is justified by a transformative purpose, using the original media for its original purpose would not usually fall under fair use. The airing of a commercial dance video still available in the marketplace just for the sake of entertainment, for example, would not be protected.