posted by Janet Landay, Project Manager, Fair Use Initiative
The College Art Association is proud to participate in the 2016 National Fair Use Week. This event is held annually during the last week of February, this year from Monday, February 22, through Friday, February 26. It celebrates the important doctrines of fair use in the United States and fair dealing in Canada and other jurisdictions. In honor of National Fair Use Week, CAA presents the following article about ways its fair use code has been embraced in the year since it was first released.
It’s been exactly one year since CAA published its Code of Best Practices in Fair Use for the Visual Arts. A session at this year’s Annual Conference took stock of the progress made during the past twelve months, and panelists recounted remarkable progress in applying fair use to the visual arts. Chaired by Judy Metro, editor-in-chief at the National Gallery of Art and chair of CAA’s Committee on Intellectual Property, five CAA members described how they or their institutions modified their approach to using copyrighted materials because of CAA’s new Code.
Leading the way was the College Art Association itself, which overturned its copyright policies for authors. As Betty Leigh Hutcheson, CAA’s director of publications, explained, instead of demanding that authors get permissions for all images and indemnify the press, CAA’s contracts now ask authors to read the Code and apply it to their uses. Indemnification is no longer required when asserting fair use.
Other publishers of artwork also told of changing policy. Patricia Fidler, art publisher at Yale University Press, described how, inspired by the Code, the press has now created its own fair use guidelines specific to scholarly publishing. Just as important for Fidler is the fact that other parts of Yale University, including its museums, are now considering expanding their access to fair use. “It’s a big step,” she said, “to give authors the last word on their fair use. And we are proud that it says at the top of our new author guidelines, ‘Yale University Press supports the fair use of art images in scholarly monographs.’”
Joseph Newland, head of publications at the Menil Collection in Houston, announced new policies at his museum. Thanks to the Code, the Menil has expanded access to fair use throughout the institution by adapting CAA’s policy for internal criteria. He said improvements are already apparent: “It’s really helped work flow, especially at the press office, which often needs to respond to the news cycle in a timely way.”
Sometimes progress includes learning from frustration. Susan Higman Larsen, head of publications at the Detroit Institute of Arts, talked about having to publish a work in a scholarly catalogue without a relevant image, because of intolerable attempts at controlling content by an estate. “We misunderstood fair use,” she explained. “We didn’t understand that some commercial uses are just as eligible for fair use as non-commercial ones.” The Code helped clear that up, she said, and now the DIA is publishing a new book, in which the author wants to reproduce an image by the same artist. “This time, we’ll claim fair use,” she said. Furthermore, the DIA is considering changing its institutional policies about fair use.
The last success story of the session was from an artist, Rebekah Modrak, who teaches at the University of Michigan. She recounted the challenges she encountered after creating a work of art that incorporated copyrighted material. She made a video introducing an imaginary company, Re Made Co., that spoofed the overexemplifying hipster-Brooklyn site Best Made Co. After receiving a cease-and-desist letter, she turned for advice to CAA, which steered her to good legal advice at the University of Michigan. Her university’s lawyers welcomed the opportunity to support her fair uses and endorsed her intention to keep her video online. Modrak then published an account of her experience for a Routledge publication, Consumption Markets & Culture. When the editors there initially asked her to get permission to reproduce images from her video, she relied on CAA’s Code to persuade them that fair use would apply.
Another way CAA is measuring the impact of the Code is through annual surveys that provide longitudinal data on how CAA members are relying on fair use. At the conference session, Patricia Aufderheide shared early results from a recent 2,500-person CAA survey, showing broad awareness of the Code. More than two thirds of respondents indicated they knew about the Code, and a third of that group had already shared their knowledge, usually with more than one kind of interlocutor—for example, students, colleagues, and association members. Many of those aware of the Code had already put it to use. Indeed, 11% of all respondents had begun to employ fair use only after the appearance of the Code last year, a big leap and a demonstration of the power of understanding community values and best practice.
Peter Jaszi concluded the session by discussing next steps in CAA’s fair use efforts. Over the coming year he and Aufderheide will work to educate in-house legal counsel about the importance of mission-oriented fair use, resulting in expanded employment of fair use by museums. They will continue to give presentations about the Code to groups of arts professionals around the country, with a special focus on publishing and museum activities. And Jaszi encouraged CAA members to avail themselves of the many resources—FAQs, explainers, infographics, background documents, slideshows and more—available both on the CAA website and at the Center for Media & Social Impact.
CAA will be posting updates about fair use on its website, including the success stories described above. We would like to hear from any of you whose practices have changed because of the Code, whether you have a success story or a challenge to share. Both types of information will support the field’s efforts to make appropriate reliance on fair use the norm. If you have fair use news to share, please contact me at firstname.lastname@example.org.
Find out more about National Fair Use Week here: http://fairuseweek.org/
Below are links to some of the events taking place around the country:
A comprehensive collection of fair use codes, articles, videos and teaching materials can be found at the Center for Media and Social Impact, http://www.cmsimpact.org/fair-use
And don’t forget to look at the materials available on CAA’s website, which focus on our fair use code. There you will find Frequently Asked Questions, explanatory videos, infographics, and a five-part webinar, along with the Code itself.
Betty Leigh Hutcheson (photograph by Bradley Marks)
Patricia Fidler (photograph by Bradley Marks)
Joseph Newland, Peter Jaszi, and Susan Higman Larsen (photograph by Bradley Marks)
Rebekah Modrak (photograph by Bradley Marks)
Rebekah Modrak, Fair Use Badge of Honor