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New Fair Use Guide Helps Distinguish Between Copyright and Copywrong

A chart from the CAA's "Best Practices" infographic (all images screenshots by the author for Hyperallergic)
A chart from the CAA’s “Best Practices” infographic (all images screenshots by the author for Hyperallergic)

Hoping to remedy pervasive and often crippling uncertainty among artists and art professionals over how and when to invoke fair use when dealing with copyrighted materials, the College Art Association (CAA) has released a “Code of Best Practices in Fair Use.” Spearheaded by American University professors and copyright law experts Patricia Aufderheide and Peter Jaszi, the code offers very clear and concise guidelines for artists, scholars, instructors, curators, and editors whose work may involve using others’ artworks.

The code grew out of last year’s “Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report,” which found that many artists and art professionals were shying away from using copyrighted materials due to a lack of understanding and education about fair use. To develop the code, Aufderheide and Jaszi met with groups of between 10 and 14 art professionals in five US cities — Chicago, Dallas, Los Angeles, New York, and Washington, DC — and recorded areas of consensus with regards to fair use and the rationales given. Based on those findings and feedback from several CAA task forces, advisory groups, and committees, Aufderheide and Jaszi formalized the code, which was released to the public today.

A chart from the CAA's "Best Practices" infographic
A chart from the CAA’s “Best Practices” infographic (click to enlarge)

The code is divided into five sections outlining best practices for fair use in analytic writing, teaching about art, art making, museum work, and online archives and special collections. Based on the tone of its writing, the code seems to be aimed both at appeasing artists’ and museums’ fears that images of their works will be wantonly pillaged by fair use pirates, and at empowering artists and scholars to make use of images of existing artworks in their practices.

Each section of the code could be summarized as such: ‘Yes, you can claim fair use when using images of someone else’s art, but … ‘ Many of the caveats come down to common sense — art history teachers shouldn’t make high-resolution digital images of artworks they’re using in their classes widely available to people not enrolled in those classes, attribution should be given wherever and whenever possible, etc. — and being prepared to justify one’s use of an artwork if called upon to do so by a copyright owner. Others are clearly informed by specific cases, like this one, which could be dubbed ‘The Shepard Fairey Limitation’: “Artists should avoid suggesting that incorporated elements are original to them, unless that suggestion is integral to the meaning of the new work.”

The section addressing artists’ uses of others’ artworks is the code’s shortest, but its terms are also the most subjective. The crux of it is this: “Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard.” Determining what qualifies as “new artistic meaning” is a notoriously messy business — just ask Patrick Cariou — but hopefully the CAA’s code will give artists the courage to go ahead and use old art to make new work.

A chart from the CAA's "Best Practices" infographic
A chart from the CAA’s “Best Practices” infographic

Patricia Aufderheide and Peter Jaszi will discuss their work on the “Code of Best Practices in Fair Use” at the upcoming College Art Association conference in New York City (February 11–14) during a session on February 13, 12:30–2pm, at the New York Hilton Midtown (1335 Sixth Avenue, Manhattan) that will be free and open to the public.

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