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CAA Presents Its Fair-Use Code to Leaders of Artist-Endowed Foundations

posted by Janet Landay, Program Manager, Fair Use Initiative — Nov 16, 2015

On October 30, CAA gave a presentation about its Code of Best Practices in Fair Use for the Visual Arts to participants at an all-day Leadership Forum organized by the Aspen Institute’s Artist-Endowed Foundations Initiative (AEFI). Attending the event were directors and board members of approximately seventy foundations, such as the Warhol Foundation, the Rauschenberg Foundation, the Pollock-Krasner Foundation, and many others. Speaking on behalf of CAA were Richard Dannay, an intellectual property attorney at Cowan Liebowitz & Latman, and a member of the legal advisory committee for the fair use project; Christine Sundt, editor of the journal Visual Resources and a fair use task force member and project advisor; and Anne Collins Goodyear, co-director of the Bowdoin College Art Museum, a principal investigator for the fair use project, and past-president of CAA, under whose leadership the initiative began.

Invited by Christine Vincent, project director of the Aspen Institute’s program, this was a unique opportunity for CAA to share the new Code. As caretakers of their artist’s lifetime works, these foundation directors are greatly concerned with the quality and accuracy of images and factual information published about them, as well as  the protection of the artists’ reputations. This panel presented the thinking behind the principles and limitations to the doctrine of fair use that can ally the goals and interests of both copyright holders and users of copyrighted works.

Moderated by Stephen K. Urice, professor of law at the University of Miami School of Law and advisor to the Aspen Institute’s program, Richard Dannay began the panel with a definition of fair as stated in U.S. copyright law. He outlined the doctrine’s importance in providing room for creators to use copyrighted materials under certain circumstances without seeking copyright permission. These “fair uses” of copyright are in contrast to “infringing uses” and exist when the copyrighted materials are being used for qualifying interpretive or creative purposes. He then outlined the four factors listed in the Copyright Act of 1976 that help determine whether a purpose falls under fair use and went on to discuss the notion of transformative use: whether it “adds something new, with a further purpose or difference character.” In conclusion, Dannay emphasized the importance of understanding these considerations when determined whether or not a use of copyrighted materials can be considered fair or not; each instance of fair use is determined separately, based on the specifics of each case.

Christine Sundt spoke next about CAA’s longstanding commitment to copyright issues. “…the question of how to apply US law to our practices as artists and art historians, especially the doctrine of fair use, has been a recurring theme at our annual conferences for decades. Our members wanted answers and direction because they faced uncertainty and even disappointment in either trying to seek the law’s benefits as creators or when attempting to use rights lawfully as interpreters of art. Copyright is meant to be a balanced right but it was often impossible to see where or how this balance works.”

Sundt described CAA’s collaboration with the National Initiative for a Networked Cultural Heritage and the American Council of Learned Societies between 1997 and 2003 to sponsor workshops and discussion forums at conferences and universities, and, in collaboration with sister organizations, to explore the benefits, effects, and consequences of fair use to CAA’s wide and varied constituencies. She added that the association has also developed policies regarding orphan works. “When creative works are abandoned or not properly identified with a creator’s name, what should be required in order to use these works in transformative ways that revived them from obscurity? CAA’s members wanted direction about being innovative and creative while remaining ethical and lawful. CAA participated in the hearings on Orphan Works and prepared several amicus briefs when asked to provide opinions.”

The last speaker was Anne Goodyear, who described the best practices outlined in the Code, the method by which they were derived, and how CAA has implemented the Code since it was published in February. She cited the extensive research conducted by the authors of CAA’s Code of Best Practices, Peter Jaszi and Pat Aufderheide, including confidential interviews with 100 leaders in the field (a small number of whom represented artist’s estates.) The study revealed that many of the concerns CAA members had about copyright restrictions grew largely out of uncertainty about how and when fair use might apply to the development of new interpretive projects. “A principle aim for CAA,” she stated, “has thus been to educate visual arts professionals about its application.”

Next, Jaszi and Aufderheide met in small groups with a wide range of visual arts practitioners in five cities across the United States. Based on the information gleaned from these meetings a series of five fair use principles, each with attendant limitations, were developed in the following areas: analytic writing, teaching about art, making art, museum uses, and online access to archival and special collections.

Goodyear proceeded, “The third phase of the project brings us here today: the dissemination of the Code. On that note, it is worth stressing that CAA’s Code of Best Practices does not dictate specific standards, but instead provides flexible strategies to evaluate if a given use, whether traditional or innovative, is likely to be considered fair, even as applicable professional standards evolve. The Code will thus provide an enduring tool for both those who use and those who protect copyrighted materials as we work together to foster new creative insight and new knowledge.” She went on to describe ways in which the field is beginning to change, starting at CAA itself, where new author agreements invite contributors to its journals to rely on fair use if, based on a careful reading of the Code, they believe their use of the copyrighted materials falls within the principles and limitations described there. In conclusion, she pointed to the many endorsements the Code has received from professional associations, as well anecdotal evidence that in only eight months since its publication, the document is providing a greater sense of confidence to individuals and organizations wishing to use copyrighted materials in their scholarly and creative work.

The panel concluded with numerous questions from the floor, indicating the great interest in the topic by the artist-endowed foundation directors attending the event. Now that this community knows more about CAA’s fair use code, we hope more conversations will ensue to make reliance on it increasingly useful to the field. More information about the Aspen Institute’s Artist-Endowed Foundations Initiative can be found at www.aspeninstitute.org/aefi.

Image: Participants in CAA’s panel on fair use. From left to right: Richard Dannay, Christine Sundt, Anne Goodyear, Stephen Urice.