Classroom Discussion: Teaching Script About Fair Use in Writing About Art

Introduction

You’ve had a chance to read about fair use, and you know the function it plays in our copyright system: balancing rights by making room for new creativity while protecting the old. Now, you can share these insights with students.

The goal of these classroom exercises is to give your students a chance to practice the approach to analysis you’ve read about in the Code of Best Practices and the other materials we’ve provided. While you want your students to follow and stay within the logic of the code, you also want them to think with each other and with you about the various ways one might interpret fair use. This is practice for the kind of thinking your students will have to do throughout their working lives. Arts professionals usually will not have lawyers around to help them puzzle out questions about when they should and shouldn’t use unlicensed third party materials. Nor would having such access necessarily solve their problems. As you’ve seen, the premise of the Best Practices is that members of the visual arts communities themselves know best—at least collectively—about what makes ethical and legal sense in connection with their own projects.So the goal here is to learn something about doing it for oneself through a series of exercises that you’ll undertake (and discuss) along with your students.

The first thing to do with the students is to make sure they have read and understood the Code. After they have read the Appendix, they should focus for this discussion on thesection “Analytic Writing” (pp 9–10). Like other sections, it begins with a descriptive note which indicates that analytic writing can occur in any medium and format. Make sure your students understand how broad this range is; ask them to think about what might fall outside, and ask them why. Check their answers with the description in the Code. Then go on to the limitations, which are crucial to the interpretation, and reflect the shared opinions of the many arts professionals who were consulted in creating the document. Of these limitations, the first and third effectively recapitulate the law of fair use, while the second (that the analytic purpose should “dominate”) represents the shared concern of the visual arts community that merely representational uses may not be justified by trivial assertions of discursive intent. The final three limitations address additional considerations that Congress and the courts haven’t yet taken up, but about which the visual arts community feels strongly. Check to make sure everyone understands all the limitations.

Finally, before launching into discussion, remind the students of a practical reality: if they are ever challenged, probably the most important single determinant of whether a given use will be considered fair is whether the user can, if necessary, explain why it was important to the execution of his or her project.

You may want to use illustrations of your own, but here is a set of suggested works to discuss. (Images can be found in the accompanying PowerPoint slideshow.) They are deliberately chosen to move from the very easy to the more head-scratching. If you do use illustrations of your own, we strongly recommend that you avoid images that have been litigated, both because they are “edge cases,” and the point of discussion is to work through routine reasoning, and because judicial decisions are often decided on issues that are not related to this logic, or even sometimes about fair use.

Scenario 1: Page spread displaying paintings by Matisse and Picasso

On this page from a scholarly book publication, two paintings still protected by copyright are reproduced in black and white, in the context of a comparative discussion in the accompanying text. This is a clear example of work that could easily and uncontroversially fall within the terms of the analytic writing section. You might proceed with a discussion like this:

• Who thinks this is a fair use? Who doesn’t?
• Students might worry that this book is a commercial publication. You can remind them that whether something has been fairly used within a commercial context, like a published book, is not a legally significant criterion. If necessary, retake the vote.
• What makes this an “easy” case? How do the choices align with the limitations in the Code? Among the elements to consider:
  • The use is overtly critical;
  • The images are reproduced in black and white;
  • The image quality nevertheless is adequate (in context);
  • There is no attribution problem.
• Were any minds changed?
• Would it make a difference if this publication were being distributed digitally, as well as in analog format? (The Code notes that analytic writing can occur in any medium, including digital; but note the limitation in the section on analytic writing.)

Scenario 2: Page spread showing four drawings by Picasso

Here is a page spread featuring reproductions of related images by a single artist, all of which are copyright protected. Again, this example easily falls within the Code’s limitations on analytic writing. But don’t tell them that; let them work out why, referring back to the Code.

• Who thinks this is a fair use? Who doesn’t?
• Is it significant that, unlike the prior example, the images here are concerned with analyzing an artist’s style, rather than making a more general historical point?
• Is the attribution appropriate?
• Were any minds changed?

Scenario 3: Fold-out page spread of sixteen variations by Picasso of Delacroix’s Women of Algiers

Here is another example from the same volume, this time an oversize fold-out consisting of images by a single artist. It’s easy to imagine that the artist’s estate might feel more proprietary about this sort of display than by either of the first two examples. But that, in itself, shouldn’t matter. When something is a fair use, then by definition it is noninfringing and can be made without permission, regardless of how the copyright owner (or agent) may feel about it. This too can fall easily within the limitations of the Code, but the students will have to reach to articulate why the purpose of the use requires a larger format.

• Who thinks this is a fair use? Who doesn’t?
• In the absence of explanatory text, can you guess at the book author’s purpose in presenting these images in this way?
• Would you consider that purpose to be a “transformative” one?
• Does it matter—one way or the other—that so many images have been used here? (You might have to return to Appendix A for a refresher on transformativeness, and you might also remind your students, after discussion of this point, that fair use analysis is relatively insensitive to the number of works used, and focuses instead on whether the extent to which the use of each work is justified.)
• The originals of these works were in color, but they are all reproduced here in black and white. Is that fact significant, and (if so) how?
• Is the attribution appropriate?
• Now who thinks this is a fair use, and who doesn’t?

Scenario 4: Page spread from The Metropolitan Museum of Art Guide

Many museums make printed handbooks or collection guides available for sale to visitors and others. These publications provide illustrations of images in the collection, along with relatively short, largely informational text concerning the artist, the image, and its relation to the collection. Here’s an example. (This one is a bit harder, because it’s not a scholarly venue, but it is analytic. This tests the students’ understanding of the breadth of “analytic writing.” As well, since this is an example that is further from the easy-call center of the interpretation, people may legitimately differ. The questions are linked to the Code’s limitations; make sure the students refer to them to make their decisions.)

• Who thinks this is a fair use? Who doesn’t?
• Does anyone think that these are more generally expository and less explicitly “critical” uses than those involved in the last example? Should this matter?
• Did anyone take into account the fact that these are relatively high-quality reproductions. Does it matter? Or is that quality appropriate for the use?
• Would it matter if the guide could be downloaded digitally, as an alternative to purchasing a physical copy? (Note that the works illustrated are not born-digital ones, to which the Code applies a special cautionary limitation.)
• Since these are works in the museum’s collection, it is in a good position to provide attribution. What details do you think it is reasonable that the guide mention?
• Were any minds changed?

Scenario 5: Page spread showing works by Joan Snyder and Susan Rothenberg

Here’s a page from an essay in a published catalogue for a 2010 exhibition at the Zimmerli Art Museum, organized by Marilyn Symmes, called Dancing with the Dark: Joan Snyder Prints 1963-2010, which also includes a so-called reference image by a contemporary, Susan Rothenberg, to illustrate a comparison made in the text. The Rothenberg work did not appear in the exhibition. (This is a case where the students have to think more deeply about transformativeness, outside of a use directly for analysis of the image itself or illustration for a particular argument. While the Code’s analytic writing section could justify this, they will need to reach to get to a rationale for why such uses are transformative.)

• Who thinks this is a fair use? Who doesn’t? [Show of hands]
• Would someone please articulate a rationale for including this reference image that bears on the question of whether its use is “transformative”? Do others agree?
• Does this mean that any use of a copyrighted image that helps to support an argument can be a fair use, if the image size/amount is appropriate? Do you think this is what the Code intends to say?
• Who is best positioned to say why the use can be justified as transformative? Is it the author of the essay, the editor of the catalogue, the publisher, or someone else?
• Would copyright owners have any valid reasons to object to such uses based on fears of market substitution?
• Would it matter if the catalogue could be downloaded digitally, as an alternative to purchasing a physical copy?
• Were any minds changed?

Scenario 6: Cover from a book about twentieth-century art

Finally, here’s what might or not be a limiting case; the students may well find that the limitations in analytic writing do not match the use. But let them try to match up the limitations and the use, and argue about it. The book in question is a general survey of twentieth-century art, which devotes no special attention to Jackson Pollock even though a painting by him is illustrated on the cover. On the other hand, Pollock is probably as good as any, and better than some, to represent the general ferment of post-WWII twentieth-century visual culture.

• Who thinks this is a fair use? Who doesn’t? [Show of hands]
• The Code directs our attention to whether there is a “analytic objective” that is served by including the material (image, text, etc.) under consideration. Is there one here? Suppose the author of the book insists that Pollock is an important “emblem of modernity” and that no other artist’s work will do for the cover? Or would you want more?
• What about the extent (amount and kind) of the use? Is this necessarily the appropriate amount for the purposes of “invoking” Pollock?
• Ordinarily, the possibility that a copyright owner will suffer a loss of licensing revenues isn’t, in itself, a basis for concluding that a challenged use isn’t fair. But when the rationale for transformative use is weak, economic considerations could come into play.  Does the unlicensed use of the work as a cover illustration threaten any other particular economic harm, other than the loss of a licensing fee, to the Pollock estate?
• The cover illustration is attributed on the inside title page. Is that appropriate?
• Were any minds changed?