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Fair Use Is Up to Date in Kansas City

posted by Janet Landay, Program Manager, Fair Use Initiative — Apr 21, 2016

“Do we have to seek copyright permission to post on our website a scholarly checklist of twentieth-century paintings?” “Our museum wants to put an image of a contemporary sculpture from its collection on an invitation for a fundraiser. Do we need copyright permission?” These are the kinds of questions a group of art-museum professionals discussed at a half-day workshop on copyright and fair use sponsored by CAA with funds provided by the Andrew W. Mellon Foundation and held at the Nelson-Atkins Museum of Art in Kansas City, Missouri, on April 8, 2016.

When Patricia McDonnell, director of the Wichita Art Museum, decided her museum could use input and guidance in applying the policies outlined in CAA’s Code of Best Practices in Fair Use for the Visual Arts, she organized a meeting for art museums in her region, believing that the support and information she needed was likely the same as her neighboring colleagues. As a member of CAA’s Task Force on Fair Use, McDonnell was familiar with the approach outlined in the Code, and her primary goal was to design an event that would generate immediate practical results. To that end, the “fair use summit” featured two elements that made it particularly effective. First, each of the eight participating museums was represented by its director, legal counsel, and staff member responsible for rights and reproduction. Second, each museum submitted a case study of a fair-use issue from their institution in advance, thereby providing practical examples for consideration during the workshop. As a result, the pragmatic discussions that took place exemplified the type of analysis necessary to determine on a case-by-case basis if the use of a copyrighted text or image is fair; the talks also unified the participating staffs in their understanding of this work.

 

The workshop was led by Peter Jaszi, a lead principal investigator on CAA’s fair-use project and a professor at American University’s Washington College of Law. After providing a brief history of fair use and how court opinion has evolved on this aspect of copyright law, Jaszi guided participants in analyzing each case study to determine if the use in that instance required copyright permission or if the museum could rely on fair use. Participants referred to CAA’s Code to understand the basic principles and limitations that applied in each case. In every situation, the key question was whether or not the use under consideration was “transformative.” Did it show the work of art in a new context, add to its meaning, or change our understanding of it? Was it an educational use? As the discussion continued, it became apparent that every user of copyrighted materials has to decide for him or herself if a use is fair. One museum might decide that the fair-use doctrine applies to a copyrighted image on the cover of a catalogue, for example, while another museum using the same image on the cover of a similar publication might decide to seek permission. It all depends on how each institution understands its own purpose.

The summit included the following museums: the Marianna Kistler Beach Museum of Art, Kansas State University; the Crystal Bridges Museum of American Art; the Kemper Museum of Contemporary Art; the Nelson-Atkins Museum of Art; the Nerman Museum of Contemporary Art, Johnson County Community College; the Spencer Museum of Art, University of Kansas; the Ulrich Museum of Art, Wichita State University; and the Wichita Art Museum. As a result of the meeting, the directors and staff of these institutions have decided to continue their work on fair use by sharing documents related to rights and reproductions―donation agreements, artist contracts, and the like. The goal is to develop additional best practices among their museums related to copyright and fair use.

Julian Zugazagoitia, director of the Nelson-Atkins, summarized the accomplishments of the meeting like this: “I think it brought immensely valuable information to all our participants and will allow us to use images in a more robust and self-assured way.” McDonnell also commented: “The CAA Code opens the door to a sea change in art-museum practice related to image use. Arriving at wise conclusions about interpretations of fair use with other art-museum colleagues provided grounded information and confidence about possible new practices.” What better results can one ask for?

Image: Shuttlecock (1994) by Claes Oldenburg and Coosje van Bruggen on the lawn of the Nelson-Atkins Museum of Art in Kansas City, Missouri