Are Art Professionals Afraid of Fair Use?

Visual art professionals are not making use of fair use, a new report issued by the College Art Association (CAA) says, in large part because they’re concerned about the repercussions of not obtaining copyright permissions. “Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities,” released this month, finds that visual arts professionals — art historians, museum workers of all kinds, publishers, and artists — are confused and misinformed about copyright law and fair use, and that, as a result, “their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”

The CAA commissioned the report from Patricia Aufderheide, professor at the School of Communication and director of the Center for Media and Social Impact at American University, and Peter Jaszi, professor at American’s Washington College of Law, along with graduate fellows Bryan Bello and Tijana Milosevic. They compiled their findings primarily through an online survey with members of CAA and 100 hour-long phone interviews with visual art professionals, as well as interviews with rights holders and relevant scholarly and legal research. The resulting nearly 90-page document paints a frustrating and accurately thorny picture of the rights situation in the world of visual art (despite being sometimes repetitive and sometimes overly dramatic).

As Aufderheide and Jaszi explain it, we live in a “permissions culture,” which values copyright permissions above all else. “Members of the visual arts communities of practice encounter copyright permissions issues in connection with virtually every aspect of fulfilling their professional responsibilities,” they write, “ranging from an artist’s creation of work that references popular culture to an art historian’s focus on a contemporary artist, to a teacher’s compilation of curriculum materials, to a museum exhibition and catalogue, to scholarly and art publishing.”

Aufderheide and Jaszi posit that this “permissions culture” exists for a number of reasons, including an exaggerated view of the risks of using copyrighted material, an inadequate understanding of copyright law, a desire to maintain good relationships with the people who control copyrights, the bullishness of said people and organizations (the Artists Rights Society [ARS] and Visual Artists and Galleries Association [VAGA] are mentioned a number of times), and an inherent belief in the importance of copyright and protecting creators.

The last reason is noble enough, but according to Aufderheide and Jaszi and the results of their research, permissions have become such an issue that they’re interfering with professionals’ work — the ability to educate, to undertake scholarly studies, to make art. A full one-third of those interviewed said they had abandoned or avoided projects because of copyright issues. And what’s most damning are the anecdotes and stories from interviewees. A few examples:

• “One museum professional expressed frustration at being required to negotiate with ARS for permission to reproduce a work of art that the institution believed was in the public domain (which ARS disputed) and that was in its own collection.”
• “One editor who had received an estimate from a rights agency for images to illustrate a major twentieth-century survey, requiring between 300 and 400 reproductions, reported that the cost per image was quoted at $375 (for permissions and a high-resolution image file). Even assuming a discount could be negotiated and some images obtained at no cost from galleries, rights and reproductions cost for such a book easily could approach $100,000.”
• “Some museum professionals used words such as ‘criminal,’ ‘nightmare,’ ‘holdup,’ and ‘extortion’ to describe the actions of some rights holders and their representatives. Museums usually have staff dedicated to permissions, individuals whose time is not devoted to the core mission. One respondent bemoaned the ‘wasted’ time and money in copyright permissions.”

The effect seems to be particularly detrimental for academics and historians, who often can’t support the costs of obtaining permissions for a book and may be compelled to change their work and research accordingly. As one passage notes:

Among other things, the cost of permissions leads to less work that features historical overviews and comparisons, and more monographs and case studies. In some cases, the demands of rights holders have extended to altering or censoring the scholarly argument about a work. Catalogue copy sometimes is altered because scholarly arguments and perspectives are unacceptable to rights holders. These actions are in some cases explicitly seen as censorship. “I think of copyright as a cudgel, and I have been repeatedly forestalled and censored because I have not been able to obtain copyright permission,” said one scholar whose work was not approved by the artist’s estate. “For those of us who work against the grain of [the] market-driven arts economy, their one recourse for controlling us is copyright.”

Artists, it should be noted, seem to have a less fraught relationship to copyright; the study found that they’re more relaxed when it comes to simply using copyrighted material and calling it fair. But what’s interesting, too, is Aufderheide and Jaszi’s finding that people seem to be self-censoring much more out of a fear of repercussions than because of hard evidence of such. Art professionals tend to think they have a good grasp of copyright, the study says, but “assessments of risk typically were either grounded in misinformation or altogether ungrounded.” Of 2,828 survey respondents, “only one person had ever experienced a formal legal conflict (quickly settled out of court) over copyright.”

The missing key, say Aufderheide, Jaszi, and the CAA, is fair use — increased understanding and employment of it. Accordingly, the report is only phase 1 in a four-phase project “to develop and disseminate a Code of Best Practices for Fair Use in the Creation and Curation of Artworks and Scholarly Publishing in the Visual Arts.” The next step will be a series of discussions in five different cities led by Aufderheide and Jaszi, followed by the drafting of a code. In the meantime, the report is long but also chock-full, and worth digging into yourself.

h/t Inside Higher Ed