Classroom Discussion: Teaching Script About Fair Use in Making 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 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 Code of 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 Appendix A, they should focus for this discussion on thesection “Making Art” (p. 11). In this area, as in each of the others, the document gives you some basic criteria for assessing what uses may be considered fair, and suggests some ways in which your analysis can be deepened and be made still more reliable. As you can see, the section begins with a descriptive note, which indicates the extremely broad coverage of the principle affirming the application of fair use, including art-making activities of all kinds, in all media, and in digital as well as analog. The limitations that follow are crucial to interpretation, and reflect the shared opinions of the many professionals who were consulted in creating the document. Of these limitations, the first two effectively recapitulate the law of fair use, while the second two address additional considerations that Congress and the courts haven’t yet taken up, but about which the visual arts community feels strongly.

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. [Relying on the principles and limitations in CAA’s Code of Best Practices, all but the fifth set of images (Dennis Morris and Mr. Brainwash) are fair use examples.] 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: Works by Marcel Duchamp and Salvador Dalí

Here are two well-known images. Duchamp died in 1968, so it’s quite possible his L.H.O.O.Q. version of the Mona Lisa is still under copyright. Let’s assume, for present purposes, that it is; of course, that wouldn’t give Duchamp’s successors rights in everything, but it would give them ownership of his specific contributions, including the famous superimposed mustache. The other image is Dalí’s 1954 variation on it, which duplicates that facial ornament—with a twist of its own. We focus on the work by Dalí, and our question is whether the Dalí could be considered a fair use of the Duchamp. (This is an easy one, but a great place to start to see if they can use the terms of the Code.)

• Who thinks this is a fair use? Who doesn’t?
• Is the Dalí version “transformative,” in that it generates new artistic meaning? Is it, in effect, a parody of a parody? Or would you tell the story of this use differently? Can we agree on a common story? (If people are struggling, they might need to return to Appendix A to read about transformativeness.)
• Whatever we think the new purpose of the use would have been, could it have been equally successful if Dalí had somehow used less of the image? Couldn’t he have made his point by repainting only the face of the Duchamp version, in effect confining himself to a detail? (Remind the students, if necessary, that the standard is not whether the extent of the use was “necessary” to the user’s goal, but whether it was appropriate.)
• Look now at the last two limitations. Is there a risk that the Dalí might be mistaken for the Duchamp? Is this a case where there may be an “authentic aesthetic basis” not to provide attribution? Would attribution, in effect, spoil the joke?
• The students might worry about the fact that these paintings were made for sale and indeed sold. So before you conclude the analysis, it’s important to reemphasize that there’s a least one consideration that it is tempting to take into account, but that simply doesn’t belong in this sort of fair use analysis: the fact that the Dalí image was prepared for sale, and actually did change hands at a good price—that the use was, in other words, commercial. This is not a significant consideration, perhaps because so many uses, artistic or otherwise, are undertaken for gain (among other reasons). Additionally, it’s hard to imagine that someone would purchase the Dalí instead of the Duchamp; in spite of similarities, they are unique works by unique artists and not interchangeable.
• Were any minds changed?

Scenario 2: Print by Keith Haring

What made the first example particular straightforward is that the artist relying on fair use was commenting, by means of a new image, on preexisting ones. In effect, this is an example of criticism or commentary on an artwork carried out by visual means. But fair use isn’t only for critique. Consider the Keith Haring homage to Mickey Mouse, an icon of popular culture. (This one is also easy, but the students will have to move beyond the arguments of commentary and parody, and really put the concept of transformativeness to work.)

• Who thinks this is a fair use? Who doesn’t?
• What’s the artist’s apparent goal or purpose here? (Let them work this out—some possibilities include illustrating the ubiquity of popular commercial imagery in American consciousness, and the debasement of taste, but they may have other arguments too.) Is the purpose you identified a transformative one within the meaning of the first two limitations of the Code?
• Does the fact that Haring may be commenting on American culture rather than on Disney iconography, as such, matter? Should it?
• And back to the issue of attribution. Should it be employed in quotations from popular culture as a general matter, or reserved for certain cases? Is attribution more applicable in cases where fine art works make use of another? (There are no rules about this question, and the Code leaves it open; but whatever the students argue, they should be prepared to justify within the terms of the Code, featuring both transformativeness and appropriateness.)
• The students might be dazzled by the fact that it’s Keith Haring. You might also ask them to consider the same question with an example of, say, local graffiti or an anonymous internet doodle. Before answering, they might want to reread the description in Section III, because—but don’t tell them, let them find it out—it makes clear that fair use is available to both the humble and the grand.
• Were any minds changed?

Scenario 3: Images by Andrea Blanch and Jeff Koons

Here’s a case that was in the courts, involving a fashion photograph of feet in shoes that was incorporated into a large painting, Niagara, by Jeff Koons, who explained that “certain physical features of the legs [in the photograph] represented for me a particular type of woman frequently presented in advertising.” He considered this typicality to further his purpose of commenting on the “commercial images . . . in our consumer culture.” (This is a really interesting example for the art students, because it shows how important it is for an artist to be able, if called upon, to explain what he/she was doing that was a transformative, appropriate, use of the material. It will work best if the students do not know the outcome of the case. The court found fair use without any particular difficulty in this case, but don’t tell them that until they have worked out what they think.)

• Who thinks this is a fair use? Who doesn’t?
• What do you think of Koons’s explanation? Does it help that he provided it?
• Should it matter than Koons is a highly successful artist, whose pieces sell for high prices, whereas the fashion photographer whose work he used was earning only at a modest professional level? Is there anything in the Code that suggests this should be a consideration? (You can remind them of your earlier point about commerciality; you might also have to disentangle what they think is rude or insulting marketplace or ethical behavior from what the law permits, and why.)
• How important is it that Koons used less than the whole photo? What standard should be applied, according to the Code, to the question of whether he “right-sized” his use? (This is an important point for them to debate with each other; the law sets no requirement on how much should be taken, as the Code makes clear, and links the amount to the transformative purpose. But let them work this out, referring to the Code.)
• Koons did not follow the recommendations of the Code by giving credit. Discuss whether he should have done so. How serious a defect do you think this should be where a fair use claim is concerned? (It may be worth reminding students that although the visual arts community has decided that attribution is important, there is no indication that today’s courts consider it necessary.)
• Were any minds changed?

Scenario 4: Work by Robert Rauschenberg

Here’s an image that may pose a greater (or different) challenge: a Rauschenberg collage that incorporates bits of found material (in the form of pages and clippings from paper media). Although most of the material would be quite hard to identify, and may seem to lack value, we must nevertheless assume (unless advised otherwise) that it may be subject to copyright. The artist’s purposes aren’t easy to read, and he’s not on record explaining himself. However, pastiche techniques of this kind are very common throughout his career. (This is a case that takes students even further into needing to find a story about artistic process that explains transformativeness. It shouldn’t be too hard for them to find one, but they will need to work at it. This example is really important for them, because cases like this are more and more likely in digital creation. At the end, you might want to share with them that Rauschenberg sometimes was challenged by photographers, but never in a dispute that led to a legal decision).

• Who thinks this is a fair use? Who doesn’t?
• If the artist were challenged for his use, would it matter if an expert—for instance, an art historian—opined on how and why the artist used found materials? Why or why not? (The students may want to retain the right to interpret artistic activity for the artist; but that also places a burden on the artist to be able to articulate a reason why they did what they did. Furthermore, in the ecology of art-making, critics, curators, and other professionals play a role in shaping the significance of artistic practices too.)
• Given that the use is aesthetic rather than informational, how can one discuss or decide whether the amount used is appropriate? (This is a challenging question, and it will force the students to really think about artistic practice.)
• What kind/form of credit might be used in an instance such as this one? Would it be important to do so, if possible? Is there an argument that credit would be inappropriate?
• Were any minds changed?

Scenario 5: Images by Dennis Morris and Mr. Brainwash

Here’s another example, also the subject of a recent court case. It involved a print by Thierry Guetta (aka Mr. Brainwash) which was sourced to a photograph of Sid Vicious, the punk rock musician. Mr. Brainwash used the photograph without licensing it or acknowledging the maker, a professional portrait photographer named Dennis Morris, who subsequently sued. (This is a real borderline case, of someone whose decisions fall outside some of the terms of the Code, but still might be considered for the eligibility of fair use in the large “grey area” outside the Code. Once the discussion is over, you may want to note that Mr. Brainwash lost the case and did not appeal the result. His lawyer has explained that this is because damages were low and it was easier to pay and move on. It may also be important to recognize that this case was decided before the Code was released; it might come out differently today.)

• Who thinks this is a fair use? Who doesn’t? [Show of hands]
• What could Mr. Brainwash say that would persuade us to take his fair use claim seriously? Does it matter that he hasn’t actually said it?
• Given that the use is aesthetic rather than informational, how can one discuss or decide whether the amount used is appropriate?
• In fair use cases, the issue of a “consumer substitution” test sometimes comes up in connection with deciding whether a use is “transformative.” Could Mr. Brainwash’s image serve as a market substitute for the original photograph? What additional information would we need to make an educated guess?
• Would giving proper credit make a difference? What kind/form of credit might be used in an instance such as this one?
• Were any minds changed?

Scenario 6: Works by Andy Warhol and Elaine Sturtevant

The two Marilyns—Andy Warhol’s silkscreen and Elaine Sturtevant’s acknowledged follow–on silkscreen—bring together many of the considerations we’ve been considering up to now: the meaning of “transformative use;” the question of whether an appropriate amount has been taken; the relationship between the markets for the works; attribution; and so forth. After the initial show of hands, ask the students to break up into groups and report back, rather than directing the discussion. To conclude this discussion about fair use, you might point out that Sturtevant’s appropriation of the Warhol image is a conceptual work of art whose entire meaning resides in her action of quoting Warhol’s work. She states as much by including Warhol’s name (and crediting him at the same time) in the title, Warhol Licorice Marilyn. Thus, a major principle of fair use—the ability to articulate a reason behind the use of a copyrighted work—is conveyed in this example. Be sure to ask for a repeat vote on whether or not the Sturtevant work is a fair use at the end of the discussion.