Code of Best Practices in Fair Use for the Visual Arts

Why the Code?

Artists, scholars, teachers, museum professionals, and others represented in the College Art Association membership are significant producers of copyrighted works and they value their own rights. CAA recognized the value of promoting greater certainty among its members about the appropriate exercise of fair use. The risk posed by widespread uncertainty on this point was underscored by the common default expectation that users of copyrighted material should routinely seek permission to eliminate potential legal liability for unauthorized uses. CAA members were aware that such a culture of permissions could limit the work of the visual arts community and, as a result, deprive the public, especially in a digital era. CAA therefore engaged Patricia Aufderheide and Peter Jaszi, professors at American University and leading experts in copyright and fair use, to assess the current state of the community’s practices with respect to the use of third-party copyrighted materials. In 2014, thanks to generous preliminary funding from the Samuel H. Kress Foundation and a major grant from the Andrew W. Mellon Foundation, CAA asked Aufderheide and Jaszi to prepare “Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report.”

The Issues Report, which was based on their interviews with 100 visual arts professionals and a survey of CAA members, reported that the practices of many professionals in the visual arts are constrained due to the pervasive perception that permissions to use third-party materials are required even where a confident exercise of fair use would be appropriate. Most commonly the decision not to rely on fair use is made by visual arts professionals themselves. Although members of the community may rely on fair use in some instances, they may self-censor in others, due to confusion, doubt, and misinformation about fair use, leading them to over-rely on permissions. (This is in contrast to self-censorship due to specific, non-copyright-related circumstances, such as a personal relationship with an artist.) Doing so jeopardizes their ability to realize their own full potential, as well as that of the visual arts community as a whole.

Aware of the success of other communities in developing codes of best practices in fair use, and of the opportunity that best practices present to help shape the application of fair use law, CAA decided to create such a code for the visual arts community. The methodology is described in Appendix B.

When the Code Does and Does Not Apply

Fair use is part of US copyright law, and the Code applies to the activities of 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, performances, and other uses outside the United States, including web-based uses specifically targeted toward other countries, to which those countries’ laws may apply.

The Code is not applicable to—and is not needed for—uses of material for which permissions already have been granted to the broader public, such as through Creative Commons licenses, which provide advance permission for a range of uses. Anyone may use such works in ways authorized by the applicable license but may also invoke fair use for other kinds of uses, where appropriate.

Similarly, the Code is not a guide to—and, again, is not needed for—the use of material that is in the public domain. By definition, public domain material is not protected by copyright and may be used without regard to copyright. According to the reasoning of the decision in Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), moreover, copyright-free material also includes faithful photographic reproductions of two-dimensional artworks, which are distinct from the artworks they depict. Bridgeman, however, does not on its face apply to still photographs of three-dimensional works, such as sculpture, architecture, and performance art. Nevertheless, such photographs might be used pursuant to fair use in light of the principles and limitations set forth in the Code.

In practice, fair use can be applied only to works for which users can obtain access, including, for example, in the case of visual art, to reproductions, such as analog slides or digital images. Sometimes, however, permission must be sought simply because a “sole source” controls an art object or reproductions thereof—even where the work itself is in the public domain. Because demands for permission fees in this context are not based on copyright, fair use cannot be invoked to avoid paying such fees.

Fair use and, therefore, the Code, also do not apply to the extent that a license agreement or other contract controls reproduction or other use. Thus, for example, archives must abide by restrictions imposed by donors, and museums must comply with provisions for rights clearance in distribution contracts that supersede fair use. Sometimes such terms may be found in the “fine print” of agreements that may otherwise be noncontroversial.

Code of Best Practices: Situations, Principles, and Limitations

Appendix A: Fair Use Today

Some background information about the fair use doctrine, seen in the context of copyright law and its objectives, may be helpful in thinking about how to use the Code. The goal of US copyright law is to promote the progress of knowledge and culture. Its best-known feature is protection of owners’ rights. But copying, quoting, recontextualizing, and reusing existing cultural material can be critically important to creating and spreading knowledge and culture.

That is why there is a social bargain at the heart of copyright law. That bargain is: Our society offers creators some exclusive rights in copyrighted works, to encourage them to produce culture. The compensation that creators receive from exploiting their copyrights is important as an incentive to this ultimate end; it is not an end in itself. Society also limits copyright in important ways, so that the primary intended beneficiary of copyright law—the public—can benefit from those works. Most basically, copyright lasts for a limited time, and then works enter the public domain, where they are free for use by all. Other limitations allow the use of works protected by copyright without permission or payment to the copyright owner. Without those uses, creative and scholarly activities would suffer, and the public would lose out on important new work that builds on the past.

As Section 107 of the Copyright Act of 1976 provides, “fair use of a copyright work . . . is not an infringement of copyright.”2  Fair use is the most important limit on copyright monopoly rights. It has been part of US copyright law for more than 170 years. Where it applies, fair use is a right and not a mere privilege. Because copyright law describes fair use in general terms, the fair use doctrine can adjust to evolving circumstances, and the fact that it is asserted procedurally as an affirmative defense should not affect this characterization. As a comparison, for example, freedom of expression is a right that is also asserted as a defense in defamation cases. Rather than following a formula, lawyers and judges assess whether a particular use of copyrighted material is “fair” according to an “equitable rule of reason.” This means taking into account all facts and circumstances to decide if an unlicensed use of copyrighted material generates social or cultural benefits greater than the cost imposed on the copyright owner.

Judicial decisions on fair use can give practitioners strong positive guidance about how to apply the doctrine. In 1976, Congress inscribed the venerable judge-made rule into Section 107, codifying the familiar “four factors.” It also included a preamble, listing examples of uses that were eligible to be treated as fair use. Notably, some of these (like “criticism, comment, . . . teaching, scholarship, [and] research”) are core activities of many visual arts professionals. There then ensued a decade of generally cautious and even conservative court opinions, calling into question the real utility of the doctrine for those who make and comment on culture.

Since the early 1990s, however, the case law has taken a dramatic turn. By 2002, when the US Supreme Court affirmed the strong connection between fair use and First Amendment freedom of expression in Eldred v. Ashcroft, 537 U.S. 186 (2003), the doctrinal landscape already had changed dramatically. In the intervening time, the courts had indicated that a generally critical consideration in evaluating the fair use factors is whether the use can be considered “transformative”—whether it “adds something new, with a further purpose or different character,” as the Supreme Court put it in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Since then, cases have reinforced the notion that for a use to be considered “transformative,” it need not—as, in fact, it usually does not—entail a literal modification or revision of the original material. Instead, it is crucial that it has put that material in a new context where it performs a new function. Thus, the reproduction of an image to illustrate the argument of a scholarly article could qualify, just as could the use of copyrighted material in new art.

Where a use is transformative, the first statutory factor (looking to “purpose and character”) will weigh strongly in favor of fair use even if the new use is “commercial” in character. The second factor (which implicates the nature of the work used) tends to favor transformative uses as well. This factor functions to provide certain imaginative works extra protection from unfair exploitation; however, this concern loses much of its force when they are used for new purposes. Moreover, where the third factor is concerned, courts will measure the appropriateness of the amount of copyrighted material used against the transformative purpose of that use; where visual imagery is concerned, use of an entire work often will qualify, as in Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000).

And crucially, a transformative use is likely to weigh in favor of fair use under the fourth factor (directed toward the market harm suffered by the copyright holder), because (as increasing numbers of courts have recognized) copyright owners are not entitled to control the “transformative markets” for their works, as exemplified by Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), which involved graphic art reproduced to illustrate a historical narrative. The unlicensed use of reference images (so-called “thumbnails”) in internet search engines has been found to be fair on this basis, an example being Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). But, conversely, the transformativeness test also safeguards rights holders from the invasion of commercially significant markets or potential markets that they are entitled to exploit. When a use merely substitutes for an authorized use in a copyright owner’s core market, for example, the photographic image of a statue chosen and used for its visual appeal on a postage stamp in Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010), it is less likely to be considered fair.

Where a use is deemed nontransformative, the market-harm test of factor four is likely to play a more important role in the analysis. Thus, for example, a textbook author’s failure to license summaries of various artists’ careers adopted from a proprietary website could weigh against a fair use finding. Alternatively, the reproduction of an “orphan” work that is not being actively exploited might be deemed fair on the same grounds.

As might be expected, these developments in the case law have been questioned by some, who have criticized the transformativeness test as too subjective in its application, too harsh (where the interests of copyright owners are concerned) in effect, and somehow inconsistent with the fact that copyright owners are granted an “exclusive right” to “prepare derivative works” under Section 106(2) of the Copyright Act. Only time may tell how well justified some of these objections are. But, as to the last, it is worth noting that all the exclusive rights granted in Section 106 are qualified. It is not clear why the derivative work right should be any less subject to fair use than, for example, the rights of “reproduction,” “distribution,” or “performance.”

Certainly, controversy remains about how fair use should apply to so-called 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 particular application of the transformativeness test in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), involving new works created by defendant’s overpainting of photographs taken from plaintiff’s book, continues to attract critics as well as defenders. This Code offers a balanced approach to invoking fair use in this area of visual arts practice, as in others.

In general, there has never been as strong a general judicial consensus about the nature of the fair use doctrine as the one that exists today. In making fair use decisions about issues such as those that confront the visual arts community, judges today generally focus, in effect, on two key analytic questions:

• Did the use “transform” the copyrighted material by using it for a purpose significantly different from that of the original, or did it do no more than provide consumers with a “substitute” for the original?

• Was the material taken appropriate in kind and amount, considering the nature of both the copyrighted work and the use?

These two questions effectively collapse the four factors. The first question contains the first two factors—the purpose of the use and nature of the work used. Thus, for example, the unpublished nature of a work could weigh against fair use if a deceased artist’s copyrighted private letters were being used for gratuitous and sensational effect, but it should have little bearing if the use were for an academic (and thus transformative) purpose. The second question rephrases the third factor, which looks to the quantity and quality of the material used. Both of the key questions touch on the fourth factor, focusing on economic harm the use will cause to the owner’s relevant market. This is because courts have made it clear that substitutional harm is what matters in applying factor four. Thus, if Artist B’s “parodies’’ of Artist A’s works actually supplant purchases of Artist A’s works, that might result in such harm, but if Artist A’s work, as a result, loses popularity or marketability, that would not.

In other words, if the answer to these two questions is clearly in the affirmative, a court is likely to find a use fair, even if the work is used in its entirety. Where that is the case, a rights holder also might conclude that it ought not to challenge the use.

Court decisions also show that it can be helpful to the fair use argument for the user to explain the new function, purpose, or context of the use. The case law further suggests that the more coherent an account the user can give of how and why it was appropriate to employ the copyrighted work, the easier it is for judges to understand if and whether and why the use would be considered transformative.

The flexibility of fair use can lead users to wish for clearer rules or brighter lines. But the flexibility of fair use is its strength. Courts have emphasized that fair use analysis is fact- and situation-specific. In most cases, however, it is also quite predictable. Moreover, it can be made more so. Even without case law specifically addressing a use, judges and lawyers consider expectations and practice— whether the user acted reasonably and in good faith in light of standards of accepted practice in a particular field. One way of creating better understanding of what fair use permits is, therefore, to document the considered attitudes and best practices of a professional community.

Finally, it is worth noting that legal experts disagree on how much a user’s 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).

Appendix B: How the Code Was Created

In five cities—New York, Washington, DC, Dallas, Chicago, and Los Angeles—two groups, each of ten to fourteen visual arts professionals, met with facilitators Aufderheide and Jaszi for four-hour, closed, deliberative discussions. Each group brought together practitioners from across the spectrum of the visual arts, including artists, scholars, museum professionals, editors, and others. They were asked to speak as individuals rather than as representatives of particular organizations. To encourage open discussion, participants’ anonymity and the confidentiality of their individual views were guaranteed.

In each session, participants considered issues drawn from the situations described in the Issues Report. Participants discussed their reasons for using third-party materials in such situations and, in light of their missions, they explored the limits of those rationales. Each group considered areas of consensus identified in previous groups’ discussions as well as points that had not been clarified fully in those earlier discussions.

The facilitators summarized, in a draft code, the areas of consensus identified in the discussion groups. The other principal investigators, the project advisors, CAA’s Task Force on Fair Use, its Committee on Intellectual Property, and its Professional Practices Committee reviewed and provided comments on that draft. After a further revision by the facilitators, the draft Code was presented to a Legal Advisory Committee of five experts in copyright law and fair use. That committee was charged with ensuring that the Code’s articulation of principles and limitations fell within the bounds of reason and was generally consonant with fair use doctrine. The Code was then revised in light of the committee’s comments. With the exception of Appendix A, no part of this document represents the individual views of any contributor. The final version of this document, including the Code, was presented to the Board of Directors of the College Art Association, which approved it on January 12, 2015.