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CAA News Today

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.

“CAA’s Code of Best Practices in Fair Use for the Visual Arts: How Will It Help the Visual Arts Community?” is the name of a free presentation by Peter Jaszi, lead principal investigator of CAA’s fair-use project, that will take place at the New York Foundation for the Arts (NYFA) in Brooklyn on Tuesday, October 20, 2015, 6:00–7:30 PM. Jaszi will explain how the Code works, how it was created, and why it’s reliable. The presentation will be followed by a Q&A.

When can an artist or art historian use a photo she snapped in a museum for teaching? Can a museum reproduce an image from an exhibition of contemporary art in a related brochure without licensing it? How can fair use simplify the permissions process in publications? Can an archive put images from its collection online—and if so, with what restrictions? The copyright doctrine of fair use, which permits use of unlicensed copyrighted material, has great utility in the visual arts. But for too long, it’s been hard to understand how to interpret this rather abstract part of the law. The newly created Code of Best Practices in Fair Use for the Visual Arts, produced by CAA, makes it much easier to employ fair use to do scholarship in the visual arts, art practice, teaching, exhibitions, digital displays, and more.

The event will be held at NYFA’s office at 20 Jay Street, Suite 740, Brooklyn, NY 11201 (F train to York Street Station or A train to High Street/Brooklyn Bridge Station). The talk is free and open to the public but requires an RSVP via Eventbrite. The event is made possible by CAA, with a grant from the Andrew W. Mellon Foundation.

About the Presenter

Peter Jaszi is a professor of law at American University’s Washington College of Law, where he teaches copyright law and courses in law and cinema. He also supervises students in the Glushko-Samuelson Intellectual Property Law Clinic, which he helped to established, along with the Program on Intellectual Property and Information Justice. Jaszi has served as a trustee of the Copyright Society of the USA and is a member of the editorial board of its journal. A graduate of Harvard Law School (JD) and Harvard University (AB), he has written about copyright history and theory and coauthored Reclaiming Fair Use: How to Put Balance Back in Copyright (Chicago: University of Chicago Press, 2011) with Patricia Aufderheide.

On September 3, the Visual Resources Association announced its endorsement of CAA’s Code of Best Practices in Fair Use for the Visual Arts, bringing to seven the number of leading associations to support this work. (http://www.collegeart.org/news/2015/07/13/caas-fair-use-code-receives-important-new-endorsements/) In its expression of support, VRA stated: “The Visual Resources Association (VRA) heartily endorses the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts. This code attempts to find consensus across varied constituencies working in the field of visual arts, offering useful models for bridging the divide between those who produce works of art, those who study works of art in academic settings, and those who preserve and provide access to the work produced by the first two groups…. To visual resource and allied image professionals, a key strength of the CAA Code lies in its codification of the historically scrupulous nature of our community of practitioners. In its recommendation that practitioners continue to follow accepted professional standards for metadata, privacy and confidentiality, and the consistent use of terms and conditions, the CAA Code provides a resolute assertion on behalf of our community of practice that courts may refer to when considering fair use parameters.”

Founded in 1982, the Visual Resources Association is a multi-disciplinary organization dedicated to furthering research and education in the field of image and media management within the educational, cultural heritage, and commercial environments. The Association is committed to providing leadership in the visual resources field, developing and advocating standards, and offering educational tools and opportunities for the benefit of the community at large. VRA implements these goals through publication programs and educational activities. For more information about the association, see http://vraweb.org/.

CAA welcomes other endorsements, and encourages organizations in the field to recommend the Code to members. CAA representatives are happy to address questions and to make educational presentations. To make arrangements for a presentation, whether by webinar, conference call, or in person, please contact me at jlanday@collegeart.org. The Code and supporting materials are available at www.collegeart.org/fair-use.

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

Filed under: Copyright, Intellectual Property

In a fundamental change in scholarly publishing practice, the College Art Association has announced new standard contracts with contributors to its lead journals. These new contracts encourage scholars and artists contributing to its journals to employ fair use for third-party works in copyright (such as images and quoted text) according to the principles and limitations outlined in CAA’s Code of Best Practices in Fair Use for the Visual Arts. This is in contrast to previous contracts for the CAA journals, which (like other standard contracts in the field) required contributors to obtain permissions for most illustrations and other third-party works. By adhering to the principles of fair use in this new policy, CAA leads the way for other scholarly publications and presses to similarly embrace the doctrine of fair use.

In its new author agreements, CAA states that after careful review of the Code the author must determine whether or not fair use may be invoked. If the conclusion is in the affirmative, CAA will publish without requiring third-party permission; in addition, the agreements state that the author need not indemnify CAA for claims of copyright infringement with respect to the use of a third-party work which he or she has determined is a fair use. The author’s signature on the document certifies that she or he has read the Code and considered the limitations of fair use as outlined in an addendum to the agreement. Authors will still need to obtain permission for third-party works that are not utilized under fair use.

In announcing the new policy, Linda Downs, executive director of CAA, stated “CAA is enormously proud to be a leader in the reliance on fair use in its publications. The decision is the result of two years of research in the field, consolidating the opinions of professionals throughout the visual arts community as well as legal experts into a straightforward set of principles and limitations that make it much easier to use copyrighted materials in our work. As of today, CAA journal authors are no longer required to seek permission for use of all third-party images and texts for their articles if they review the best practices code in each instance and demonstrate that their use complies with its principles and limitations. Any risk that might occur in utilizing fair use will be borne by CAA, not the authors.”

The new contracts are available in the Publications section of the CAA website.

Only months after its release, major visual arts organizations continue to endorse CAA’s Code of Best Practices in Fair Use for the Visual Arts. The Society of Architectural Historians (SAH) and the Association of College and Research Libraries (ACRL) each voted in April to endorse CAA’s set of principles regarding best practices in the fair use of copyrighted materials. In June, the Art Libraries Society of North America (ARLIS/NA) and Association of Research Libraries (ARL) also voted to endorse.

Founded in 1940, the Society of Architectural Historians is a nonprofit membership organization that promotes the study, interpretation and conservation of architecture, design, landscapes, and urbanism worldwide. SAH serves a network of local, national and international institutions and individuals who, by vocation or avocation, focus on the built environment and its role in shaping contemporary life. SAH promotes meaningful public engagement with the history of the built environment through advocacy efforts, print and online publications, and local, national, and international programs.

The Association of College and Research Libraries (ACRL), a division of the American Library Association, is the higher education association for librarians, committed to advancing learning and transforming scholarship. Founded in 1940 and representing nearly 11,000 academic and research librarians and interested individuals, ACRL is dedicated to enhancing the ability of academic library and information professionals to serve the information needs of the higher education community and to improve learning, teaching, and research. As Mary Ellen K. Davis, executive director of ACRL, stated: “The Code will serve as a valuable open-access resource for our higher education stakeholders.” Both organizations are disseminating the Code to their members.

The mission of the Art Libraries Society of North America (ARLIS/NA) is to foster excellence in art and design librarianship and image management. Founded in 1972, it has a membership of 1,000 that includes architecture and art librarians, visual resources professionals, artists, curators, educators, publishers, students, and others throughout North America interested in visual arts information. In a written statement, the ARLIS board wrote, “The ARLIS/NA Executive Board endorses the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts, an important document that will advance visual arts scholarship and creative practice in this digital age. The Code is a strong step away from a permissions culture that hinders many members of the larger community.”

The Association of Research Libraries (ARL) is a nonprofit organization of the leading research libraries in the US and Canada. Comprising more than 125 libraries at comprehensive, research-intensive institutions, its mission is to shape and influence forces affecting the future of research libraries in the process of scholarly communication. ARL pursues this mission by advancing the goals of its member research libraries, providing leadership in public and information policy to the scholarly and higher education communities, fostering the exchange of ideas and expertise, facilitating the emergence of new roles for research libraries, and shaping a future environment that leverages its interests with those of allied organizations.[3]

Groups that previously have endorsed the Code include the Association of Art Museum Curators (AAMC) and the American Library Association (ALA).

These endorsements come in addition to early support for the Code from the Association of Art Museum Directors (AAMD) and the American Alliance of Museums (AAM), both of which have recommended it to their members. In a letter to CAA, Susan Taylor, president of AAMD, and Christine Anagnos, its executive director, wrote: “AAMD believes the Code of Best Practices in Fair Use for the Visual Arts is an excellent contribution to the field and a great point of departure for best practices in the fair use of copyrighted materials…. AAMD believes this document has the potential to be a valuable aid to all professionals in the visual arts and will recommend it to our membership.”

CAA welcomes other endorsements, and encourages organizations in the field to recommend the Code to members.  CAA representatives are happy to address questions and to make educational presentations. To make arrangements for a presentation, whether by webinar, conference call, or in person, please contact me at jlanday@collegeart.org. The Code and supporting materials are available at www.collegeart.org/fair-use.

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

Register now for the next webinar in CAA’s series on fair use in the visual arts, meeting this Friday, May 29 at 1 PM EDT and the final review on Friday, June 5 at 1 PM EDT. Join the lead principal investigators of CAA’s new Code of Best Practices in Fair Use for the Visual Arts, Patricia Aufderheide, university professor in the School of Communication at American University and Peter Jaszi, professor of law in the Program on Information Justice and Intellectual Property at American University’s Washington College of Law, for an in-depth look at the Code’s section on fair use in museums and archives and a final review of the entire series. Registration for the live events is free and open to the public thanks to a generous grant from the Andrew W. Mellon Foundation.

Video recordings of the webinars in this series are available for CAA members. To access, log into your account on collegeart.org and click on the “Webinars” tab in the left-hand navigation column. Recordings of each webinar in the series will be made available to members the week following the event.

CAA will issue Certificates of Participation to those who attend all five webinars in the series. Registration secures you a spot in all remaining webinars, however you may attend any number of the remaining webinars through this registration. The webinars will cover the following topics:

May 29, 2015, 1:00-2:00 PM (EDT): Fair Use in Museums and Archives
June 5, 2015, 1:00-2:00 PM (EDT): Fair Use in the Visual Arts: A Review

Register now for the next webinar in CAA’s series on fair use in the visual arts, meeting this Friday, May 15 at 1 PM EDT. Join the lead principal investigators of CAA’s new Code of Best Practices in Fair Use for the Visual Arts, Patricia Aufderheide, university professor in the School of Communication at American University and Peter Jaszi, professor of law in the Program on Information Justice and Intellectual Property at American University’s Washington College of Law, for an in-depth look at the Code’s sections on fair use in teaching and art practice. Registration for the live event is free and open to the public thanks to a generous grant from the Andrew W. Mellon Foundation.

Video recordings of the first two webinars in this series are now available for CAA members. To access, log into your account on collegeart.org and click on the “Webinars” tab in the left-hand navigation column. Recordings of each webinar in the series will be made available to members the week following the event.

CAA will issue Certificates of Participation to those who attend all five webinars in the series. Registration secures you a spot in all three remaining webinars, however you may attend any number of the remaining webinars through this registration. The webinars will cover the following topics:

May 15, 2015, 1:00-2:00 PM (EDT): Fair Use in Teaching and Art Practice
May 29, 2015, 1:00-2:00 PM (EDT): Fair Use in Museums and Archives
June 5, 2015, 1:00-2:00 PM (EDT): Fair Use in the Visual Arts: A Review

The visual arts community is already putting the Code of Best Practices in Fair Use for the Visual Arts to work in Detroit. At a late-April meeting at the Cranbrook Art Museum, speakers showed fair use can enable work in five areas.

After a presentation on the Code by Janet Landay of the College Art Association and myself, a panel of experts explained why fair use matters to them:

Publishing. At Wayne State University Press, explained its director Jane Hoehner, fair use is essential to publishing work on film studies, one of the press’ major lines. Until now, the Society for Cinema and Media Studies code of best practices in fair use has been useful, but this new code opens more opportunities. The press does not depend on fair use for covers of the books, which function more like advertisements and are much harder to justify as a transformative use because of that.

Teaching. Diana Y. Ng, who teaches art history at University of Michigan-Dearborn, was pleased to see that current practice in her department agrees generally with the field’s consensus on using teaching materials. Fairly-used materials are, among other things, limited both to a particular course and to the students, teachers and staff in that course, and images are used at an appropriate resolution for teaching.

Art. Mark Newport, Artist-in-Residence and Head of the fiber department at the Cranbrook Academy of Art, recalled an earlier project in which he created an artwork incorporating a DC Comics character. His rationale for doing so fell squarely within the Code of Best Practices in Fair Use for the Visual Arts. But when DC Comics sent a letter asking him if he would like to license the work, he found himself having to take sole responsibility for his copyright choice. He hopes that the Code would provide guidance for institutions on what level of risk is involved in a fair use decision, since working within a field consensus generally significantly lowers the risk. “As an artist, I think you should use your fair use rights,” he said, “and be a problem for anyone who believes you should not.”

Collections. At the Henry Ford Museum, Nardina Mein, who manages the archives and library at the Benson Ford Research Center there, a number of policies encourage access to archival materials. Her museum provides digital access to some collections, and “the Code will help us tremendously with this work, especially in cases where we cannot find the copyright holders.”

Museums. Terry Segal, a registrar for the Detroit Institute of Arts, sees fair use as a way of expanding access and also streamlining work. She took heart from the simplicity of CAA’s fair use code. As someone who has spent a lot of time granting and getting permissions, she found the fact that fair use is so simple to execute heartening. “When we’re using fair use, we don’t have to worry about what all the rights in the piece are,” she noted.

Librarians, museum staff, scholars, artists, and teachers at the event seized upon copies of the Code to share with their colleagues. We look forward to stories of how the Code was received and used; stay in touch at nyoffice@colleageart.org.

Since the Code of Best Practices in Fair Use for the Visual Arts launched in February, it has begun conversations in libraries, museums, archives, editorial offices, and classrooms. (Need a refresher on that code? Check out this video!) Now, it’s picking up fans.

The Society of Architectural Historians (SAH) and the Association of College and Research Libraries (ACRL) have just endorsed the Code and other organizations have also expressed their enthusiasm. The Association of Art Museum Directors (AAMD) sent a letter of support to CAA in February, as has the American Alliance of Museums (AAM), which also posted it on their resource page.

The Code’s facilitators have been busy with workshops and presentations at the San Francisco Art Institute, the Art Libraries Society of America annual conference in Dallas, a meeting of the Legal Issues in Museum Administration in Washington, D.C., the University of Chicago and Western Illinois University among others. The College Art Association has also sponsored several webinars, including a five-part series that continues into May.

If you’re interested in hosting an event on fair use in the visual arts, contact nyoffice@collegeart.org.

The Andrew W. Mellon Foundation has awarded a second grant of $60,000 to the College Art Association (CAA) to administer the Meiss/Mellon Author’s Book Award for one year. The award was first given to CAA in 2013 as a temporary measure to provide financial relief to early-career scholars in art history and visual studies who are responsible for paying for rights and permissions for images in their publications. The Meiss/Mellon Author’s Book Award will provide grants directly to emerging scholars to offset the costs of securing images for their first books. Recipients will be selected on the basis of the quality and financial need of their project, and awards will be made twice during the year (in the summer and fall). CAA anticipates awarding between ten and twelve Meiss/Mellon Author’s Book Awards in 2015.

Scholars may submit applications for the summer round of the Meiss/Mellon Author’s Book Award before the June 12, 2015 deadline. The fall deadline is September 15, 2015. CAA will administer the Meiss/Mellon Author’s Book Award according to guidelines developed for the Millard Meiss Publication Fund grant, an award established in 1975 by a generous bequest from the late Professor Millard Meiss. The jury for the award, comprising distinguished, mid-career or senior scholars whose specializations cover a broad range of art scholarship, has discretion over the number of and size of the awards. For further information about the award and to apply, please visit www.collegeart.org/meissmellon.

CAA seeks to alleviate high reproductions rights costs related to publishing in the arts. With funding from a separate, generous grant from the Andrew W. Mellon Foundation and a start-up grant from the Samuel H. Kress Foundation, CAA recently published its Code of Best Practices in Fair Use for the Visual Arts. Part of a multi-year effort led by Patricia Aufderheide and Peter Jaszi, the Code presents 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.

For specific questions about applying to the Meiss/Mellon Author’s Book Award, please contact Sarah Zabrodski, CAA editorial manager, at szabrodski@collegeart.org or 212-392-4424.