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The College Art Association (CAA) has published the Code of Best Practices in Fair Use for the Visual Arts, a set of principles addressing best practices in the fair use of copyrighted materials based on a consensus of opinion developed through discussions with visual-arts professionals. It will be a vital resource for everyone working in the field, including artists, art historians, museum professionals, and editors. Initiated by CAA in 2012, the multi-year effort has been led by the Code’s authors, Peter Jaszi and Patricia Aufderheide, professors of law and communication studies respectively at American University and the leading experts on the development of codes for communities that make use of copyrighted materials in their professional practices.

Linda Downs, CAA executive director, said, “The Code is a crucial contribution to the field as a clear statement on best practices in the fair use of copyrighted materials that directly reflects a consensus from the visual-arts community. CAA is grateful to all of the artists, art historians, museum professionals, and editors, among others, who participated in the project so generously with their time and collective knowledge.”

The Code describes the relevance of fair use in five broad areas of the visual arts field:

  • Analytic Writing: When may scholars and other writers about art invoke fair use to quote, excerpt, or reproduce copyrighted works?
  • Teaching about Art: When may teachers invoke fair use in using copyrighted works to support formal instruction in a range of settings, including online and distance teaching?
  • Making Art: Under what circumstances may artists exercise fair use to incorporate copyrighted material into new artworks in any medium?
  • Museum Uses: When may museums and their staffs invoke fair use in using copyrighted works—such as images, text, and time-based and born-digital material—when organizing exhibitions, developing educational materials (within the museum and online), publishing catalogues, and other related activities?
  • Online Access to Archival and Special Collections: When may such institutions and their staffs claim fair use to create digital preservation copies and/or enable digital access to copyrighted materials in their collections?

DeWitt Godfrey, CAA president and professor of art and art history at Colgate University, said, “The research undertaken in this project demonstrated that a significant amount of creative and scholarly work has been stunted by a lack of understanding or clear consensus on fair use. This Code provides a straightforward set of principles that will allow those working in the visual arts to determine when they can assert fair use in their work with confidence.”

In January 2014, CAA published Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report, a summary of one hundred interviews with art historians, artists, museum curators, editors, and publishers describing issues related to the use of third-party images in creative and scholarly work. The Issues Report—which revealed significant challenges to creating and disseminating new work because of actual and perceived limitations of copyright—was the subject of ten discussion groups held last summer throughout the country with visual-arts professionals who deal with fair use and copyright issues on a daily basis. The Code is a result of this extensive research.

Peter Jaszi, professor of law in the Program on Information Justice and Intellectual Property at American University’s Washington College of Law, explained that “Although the visual-arts community is impressively diverse, including art-makers, individual scholars, and institutional users, its members came together determined to reach a useful consensus. The Code reflects the range of perspectives and expertise the participants brought to the process.”

Coauthor Patricia Aufderheide, university professor in the School of Communication at American University and director of the Center for Media & Social Impact, said, “Codes of best practices have proven enormously successful in enabling members of other creative communities to do their work well and effectively. They allow individuals to make judgments knowing where they fall in relation to the thinking of their peers—and that lowers risk. Further, codes give museums, broadcasters, insurers, publishers, educational institutions, and their lawyers a new and valuable tool to use in making better, more reasonable assessments of risk.”

During CAA’s 103rd Annual Conference in New York (February 11–14, 2015), the principal investigators of this project and authors of the Code, Patricia Aufderheide and Peter Jaszi, will speak publicly with Judy Metro, editor-in-chief at the National Gallery of Art and chair of CAA’s Committee on Intellectual Property; Jeffrey Cunard, cochair of CAA’s Task Force on Fair Use; and Christine Sundt, editor of Visual Resources: An International Journal of Documentation and former CAA board member. The session, which will take place on Friday, February 13, from 12:30 to 2:00 PM at the New York Hilton Midtown, is free and open to the public.

CAA’s Code of Best Practices in Fair Use for the Visual Arts is funded by the Andrew W. Mellon Foundation with additional support provided by the Samuel H. Kress Foundation.

About CAA

The College Art Association is dedicated to providing professional services and resources for artists, art historians, and students in the visual arts. CAA serves as an advocate and a resource for individuals and institutions nationally and internationally by offering forums to discuss the latest developments in the visual arts and art history through its Annual Conference, publications, exhibitions, website, and other programs, services, and events. CAA focuses on a wide range of advocacy issues, including education in the arts, freedom of expression, intellectual-property rights, cultural heritage and preservation, workforce topics in universities and museums, and access to networked information technologies. Representing its members’ professional needs since 1911, CAA is committed to the highest professional and ethical standards of scholarship, creativity, criticism, and teaching.

For more information please contact Janet Landay, CAA fair use initiative project manager, at 212-392-4420. To contact Patricia Aufderheide or Peter Jaszi, please contact Kelly L. Alexander, director of public relations, American University, at 202-885-5952.

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