College Art Association

CAA News Today

CAA is pleased to announce the publication of Copyright, Permissions and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report. Endorsed by CAA’s Board of Directors on January 24, 2014, the report is now available on CAA’s website (here) and will also be distributed in printed form at the upcoming Annual Conference in Chicago.  The report was written by Patricia Aufderheide and Peter Jaszi, professors of communications and law, respectively, at American University; and graduate fellows Bryan Bello and Tijana Milosevic.  Aufderheide and Jaszi are the project’s lead researchers and two of its principal investigators. Their report summarizes 100 interviews of art historians, artists, museum curators, editors and publishers describing issues related to the use of third-party images in creative and scholarly work. The research was further informed by a CAA membership survey on fair use and a review of relevant literature and legal precedents.

This issues report reveals a situation in which uncertainty about copyright law and the availability of fair use, particularly in the digital era, has made many practitioners risk-averse, too often abandoning or distorting projects due to real or perceived challenges in using copyrighted materials. The report was read by the project’s Principal Investigators, Project Advisors, and members of the CAA Task Force on Fair Use, its Committee on Intellectual Property, and a Community Practices Advisory Committee. A full list of these individuals appears as an appendix in the report.

By identifying key concerns, the Issues Report makes an important contribution toward addressing questions related to the use of copyrighted materials and the understanding of fair use principles. It represents an important step in CAA’s work to develop and disseminate a Code of Best Practices for Fair Use in the Creation and Curation of Artworks and Scholarly Publishing in the Visual Arts.  Over the coming year, CAA will host small group discussions in five cities (Chicago, Dallas, Los Angeles, New York and Washington, D.C.) among visual arts professionals, guided by Professors Aufderheide and Jaszi, to identify areas of consensus in how fair use can be employed. These deliberations will undergird the development of a code of best practices, which will be reviewed by the project’s Principal Investigators, Project Advisors, members of the CAA Task Force on Fair Use, its Committee on Intellectual Property, and a Legal Advisory Committee. Once finalized, it will be presented to the CAA Board of Directors for approval and widely disseminated.

During CAA’s 102nd Annual Conference in Chicago (February 12–15, 2014), Aufderheide and Jaszi will discuss this project publicly with Anne Collins Goodyear, CAA president; Jeffrey Cunard, co-chair of CAA’s Task Force on Fair Use; Christine Sundt, chair of CAA’s Committee on Intellectual Property (CIP), and Paul Catanese, associate chair and associate professor in the Department of Interdisciplinary Arts at Columbia College and chair of CAA’s New Media Caucus. The session will take place on Saturday, February 15, from 12:30 to 2:00 p.m. at the Hilton Chicago.

CAA’s Fair Use Initiative is supported by a major grant from the Andrew W. Mellon Foundation. It also received generous preliminary funding from the Samuel H. Kress Foundation.

The U.S. Copyright Office today publicly released a report on the issue of resale royalties for visual artists, or the “droit de suite.” The report was requested by Congressman Jerrold Nadler and Senator Herb Kohl in 2012, and is an adjunct to the Office’s 1992 report on the same topic. Some seventy countries have enacted resale royalty provisions in their laws, over thirty of them since 1992, including the United Kingdom, which is home to one of the world’s most significant art markets.

The Copyright Office has concluded that certain visual artists may operate at a disadvantage under the copyright law relative to authors of other types of creative works. Contrary to its 1992 report, the Office is supportive of further congressional exploration of a resale royalty at this time. It also supports exploration of alternative or complementary options that may take into account the broader context of art industry norms and art market practices, for example, voluntary initiatives or best practices for transactions and financial provisions involving artworks. The report reflects the diversity of public comments received by the Office over the past year, and makes a number of observations and recommendations that Congress may wish to consider in its deliberations.

The full report is available at http://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf

CAA has long been committed to enhancing understanding of copyright and fair-use issues in the field of the visual arts. Over the past year, it began a multiyear project looking toward the development of a code that reflects fair-use practices in the use of copyrighted materials in the field. The project’s methodology is based on the community-based and consensus-driven approach to developing codes of best practices in fair use that is described in Reclaiming Fair Use: How to Put Balance Back in Copyright (2011), which was authored by Patricia Aufderheide, university professor in the School of Communication at American University and director of its Center for Social Media, and Peter Jaszi, professor of law and faculty director of the Washington College of Law’s Glushko-Samuelson Intellectual Property Clinic.

To launch the project, Aufderheide and Jaszi, two of the principal investigators of the CAA project, began interviewing visual-arts professionals in October 2012, with the support of a start-up grant from the Samuel H. Kress Foundation. Last December, CAA was awarded a major grant by the Andrew W. Mellon Foundation to fund the project (see http://www.collegeart.org/news/2013/01/14/caa-receives-major-mellon-grant/).

Aufderheide and Jaszi have now completed one hundred interviews, including art historians, artists, museum professionals, archivists, art librarians, critics, designers, editors, publishers, and rights holders. These interviews have yielded rich data on the experiences and views of practitioners in the field.

To supplement these views, last March CAA circulated to members a survey questionnaire asking about their views on copyright and fair use. The survey results, along with research into legal issues and a literature review, have provided valuable information about copyright-related challenges facing the field.

Aufderheide and Jaszi are now drafting an Issues Report to summarize and analyze the information from the interviews, member survey, and literature review. Later this fall, the Issues Report will be reviewed by a number of groups, including the project’s principal investigators and advisors, the Task Force on Fair Use, and CAA’s Committee on Intellectual Property (CIP). CAA also has assembled a Community Practices Advisory Committee (CPAC) to review the report in December. The CPAC members are:

  • Maxwell Anderson, Director, Dallas Museum of Art
  • Susan Bielstein, Executive Editor, University of Chicago Press
  • Martha Buskirk, Professor of art history and criticism, Montserrat College
  • Paul Catanese, Chair of Interdisciplinary Arts, Columbia College, and past-chair, CAA New Media Caucus
  • Kenneth Hamma, Consulting at the Intersection of Cultural Heritage and IT
  • Alan Newman, Chief, Digital Imaging and Visual Resources, National Gallery of Art
  • Mari Carmen Ramirez, Curator of Latin American Art and Director, International Center for the Arts of the Americas, Museum of Fine Arts, Houston
  • Timothy Rub, Director, Philadelphia Museum of Art, and President, Association of Art Museum Directors
  • Christine Sundt, Editor of Visual Resources: An International Journal of Documentation

After this review process is completed, the Issues Report will be presented to CAA’s Board of Directors and, after the board endorses it, it will then be published in advance of the Annual Conference. The report will be the subject of the CIP’s session at the conference, scheduled for NOON on Saturday, February 15.

Over the course of 2014, the Issues Report will be used in the project’s second phase—as the basis for discussions by small groups of visual-arts professionals around the country in meetings led by Aufderheide and Jaszi. Based on these discussions, CAA then hopes to draft a code of best practices that reflects a consensus of practitioners with respect to fair-use practices in scholarly publishing and in creating and curating artworks in the visual arts.

 

The following text is from a blog post by Shira Perlmutter, director of the United States Patents and Trademarks Office (USPTO).

We Want to Hear from You on Copyright Policies in the Digital Economy

The Department of Commerce’s Internet Policy Task Force (IPTF) last week issued a green paper on copyright, and I’d like to take a moment to highlight the paper’s core content and goals. The paper, titled Copyright Policy, Creativity, and Innovation in the Digital Economy (Green Paper), represents the most thorough and comprehensive analysis of digital copyright policy issued by any administration since 1995. Along with the National Telecommunications and Information Administration (NTIA), the USPTO played a key role in its production, from gathering public comments starting in 2010 through the paper’s drafting and release.

The Green Paper calls for new public input on critical policy issues that are central to our nation’s economic growth, cultural development, and job creation. It is intended to serve as a reference for stakeholders, a blueprint for further action, and a contribution to global copyright debates. As promised in the paper, we will soon be reaching out to the public for views on a variety of topics. Please stay tuned for announcements about how to share your thoughts, insights, and recommendations.

Resale Royalty Agenda

posted by April 19, 2013

Anne Collins Goodyear, president of the CAA Board of Directors and associate curator of prints and drawings at the National Portrait Gallery, Smithsonian Institution, will represent CAA at the United States Copyright Office public roundtable on resale royalties for artists, to be held on April 23, 2013, in Washington, DC. Please download and review the agenda for the roundtable.

ArtTable, a national organization dedicated to the visual arts and women’s leadership in the field, launched a year-long series of public programs on April 8 with “The Digitization of the Art World: Are New Media Artists Transforming Art Practice and How We Think About Art Itself?” Heather Corcoran, Executive Director of Rhizome, opened the event at the School of Visual Arts Beatrice Theatre in Manhattan with a historical overview of new media and a description of trends within this practice. Framed by this introduction, panel members described diverse methodologies: Marina Zurkow presented animations and installations that probe the relationship of humans to the rest of the natural world; Wafaa Bilal, an artist displaced from Iraq after two wars and now living in New York, described his confrontational, interactive performance piece Domestic Intention (2008); and Brad Troemel discussed his relationship to art-making as a subversion of the gallery/museum complex through the remediation of images in the open space of the internet.

I attended this presentation with the College Art Association’s executive director, Linda Downs, to gain further understanding of how artists understand and consider rights in the works they produce, particularly as it relates to fair use. Unfortunately, little mention was made of this concept during presentations. Nor was it defined in any depth during the panel’s wide-ranging opinions about ownership. Alexandra Darraby of the Art Law Firm, whose practice focuses on guiding creators towards licensing their works, was the final presenter prior to the panel discussion. Darraby’s presentation only briefly acknowledged that fair use exists, even though it is an important part of the Copyright Act. Rather, she referred repeatedly to creators having a monopoly on their works, and asserted the need for artists to ensure that their work is properly licensed so that it can be monetized and protected. Those in the audience without knowledge of their legal right to reuse a copyrighted work under certain conditions could not have left the presentation with a sense of that possibility. While Darraby’s postulated thesis adheres to some works created by, on, or through the internet, it did not represent the full range of legal advice for artists.

For example, Zurkow’s work makes use of ActionScript coding that she develops with programmers. In Mesocsom (Wink, Texas) (2012), thousands of lines of script create a dynamic scene that changes based on constraints such as season or time of day. This type of complex, collaborative project should define the roles and rights of the participants to clarify future use of the project and any financial benefit that might derive from it. A polar opposite legal assumption is found in the work of Troemel, who upends the idea of ownership, like many of his generation, through constant reframing of material found on the internet. Troemel articulates his vision through his writing: “On one hand exists a utopian vision for art on the Internet, a world where intellectual property is part of a commons, where authorship is synonymous with viewership, and where the boundary between art and everyday life is fluid” (“Art After Social Media,” lecture given at MoMA PS1, March 22, 2012). Zurkow’s and Troemel’s distinct approaches are only two examples in which an understanding of fair use might benefit both creator and user.

The College Art Association is working to define a balanced consideration of fair use principles through its Task Force on Fair Use, supported by the long-standing CAA Committee on Intellectual Property. Recently awarded a preliminary grant from the Samuel H. Kress Foundation and a multi-year grant from the Andrew W. Mellon Foundation, CAA embarked last fall on a comprehensive research project to identify and disseminate best practices in the fair use of copyrighted works under current U.S. law. The resultant code will represent the ways in which creators and their works are protected by law and act as a guide for when and how a copyrighted work may be reused by another artist or by a scholar, teacher, or museum professional. The project will include interviews and focus groups comprising representatives from every corner of the arts community and will be carried out by Pat Aufderheide, University Professor and Director, Center for Social Media, School of Communication, American University; and Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, American University. Consultants to the project include Gretchen Wagner, formerly General Counsel, ARTstor; Jeffrey Cunard, CAA Counsel and Partner, Debevoise & Plimpton LLP; Virginia Rutledge, art historian and copyright lawyer; and Maureen Whalen, Associate General Counsel, J. Paul Getty Trust.

ArtTable should be applauded for posing complex questions in a public forum. Answers to the problems faced by artists in considering authorship, collaborative work, open source, and the purpose and value of art today aren’t easily answered. In a post to Rhizome’s events page, Meredith Niemczyk posed a question about this presentation: Are there new strategic, economic, and legal models for applying protections in digital art without stifling originality? (Rhizome Community Announcements, Monday, March 25, 2013, http://rhizome.org/announce/events/59353/view/) The answer to this question is yes. The qualification of this answer must be defined in such a way to promote creativity while protecting ownership rights and the fair use of works by third parties.

ArtTable’s next panel, “How Are Museums Using Digital Technology to Advance Education and Exhibition Practices?” takes place on Monday, June 24, 6:00 p.m., at the Sony Wonder Lab, 550 Madison Avenue.

Filed under: Intellectual Property — Tags:

The CAA Committee on Intellectual Property sponsored a well-attended session at the 2013 Annual Conference,  “Developing a Fair Use Code for the Visual Arts,” in support of CAA’s recently inaugurated fair-use project funded by the Andrew W. Mellon Foundation with additional funding from the Samuel H. Kress Foundation.  Chaired by Christine Sundt (also the Committee’s chair), this panel included the two principal investigators engaged by CAA to research, write, and disseminate a code of best practices in the use of third-party copyrighted material by practitioners across the arts. Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at the American University Washington College of Law, and Patricia Aufderheide, university professor in the School of Communication and co-director of its Center for Social Media, American University, were joined on the panel by Jeffrey Cunard, CAA Counsel and Partner, Debevoise & Plimpton LLP.

The discussion among panel members focused on the history of fair use and the background and schedule of CAA’s fair use project. The forthcoming code of best practices will assist individual scholars, artists, teachers, museum professionals, and other creators in analyzing what constitutes fair use of copyrighted works that they wish to employ. Answers to questions from the audience further delineated the scope of the project, which will address two types of users: scholars and museum professionals and those who use third party material in the making of art. The completed code will not constitute legal guidelines, but will document practice as it exists and will help the arts community understand the law regarding fair use. The code will provide a definition of a work of art as far-reaching and as including time-based and other multimedia forms.

Panelists for the session are also members of a Task Force on Fair Use, which oversees the project and is co-chaired by Cunard with Gretchen Wagner, former general counsel of ARTstor. Advisors on this project include Virginia Rutledge, art historian, and lawyer, and Maureen Whalen, associate general counsel for the J. Paul Getty Trust. The Committee on Intellectual Property will continue to support the project by hosting a session at the 2014 CAA Annual Conference on Jaszi and Aufderheide’s Issues Report, developed through interviews and focus groups, and a session to discuss the completed code at the 2015 Annual Conference in New York.

Additional work by the Committee on Intellectual Property included a restructuring of the Intellectual Property section of the CAA website, and presentation to and endorsement by the CAA Board of Directors of fair use guidelines written by the Association of Research Libraries and by the Visual Resources Association.

This Friday, March 8, you will receive an email with a survey about your professional experiences with copyright issues. Entitled “Creativity and Copyright,” the survey is part of CAA’s effort to develop a code of best practices to guide visual arts scholars, artists, teachers and museum professionals when they may use the copyrighted works of others under fair use. Please take the time to fill out this survey; it is crucial to the organization’s efforts to address an issue that affects all visual arts practitioners.

A description of the larger project is included in this week’s CAA News: http://www.collegeart.org/news/2013/03/05/caas-task-force-on-fair-use-meets-during-annual-conference/.

CAA is now moving ahead with its Fair Use project, which will culminate in developing and disseminating a code of best practices intended to guide visual arts scholars, artists, teachers and museum professionals when they may use the copyrighted works of others under fair use. The project is funded by a major grant from the Andrew W. Mellon Foundation. An announcement of the grant can be found here: http://www.collegeart.org/news/2013/01/14/caa-receives-major-mellon-grant/

Last year, CAA’s Board established a Task Force to guide the Fair Use project. The Task Force is co-chaired by Gretchen Wagner, former general counsel of ARTstor, and me. Its other members include CAA President Anne Goodyear, CAA Executive Director Linda Downs, Committee on Intellectual Property Chair as well as members of the Board, and CAA members at large. During this year’s Annual Conference, the Task Force held its first meeting and the Committee on Intellectual Property sponsored a session that described the background of the project, its goals, and the projected timeline.

CAA’s Fair Use project has four phases. First, a hundred visual arts professionals, representing the broad spectrum of CAA’s membership and the field as a whole, will be interviewed on the use of third-party copyrighted materials in scholarly and artistic works. We also will survey CAA’s membership, so, within the next week, members can expect to see an email with a survey about copyright and the visual arts. Please take the time to fill it out: your participation is critical to the success of the project. This research phase will culminate in an Issues Report, which will be reviewed by a Community Practices Advisory Committee and, prior to the next Annual Conference, will then be made public.

In the second phase, we will convene a series of discussion groups across the country to focus on the issues raised by the Issues Report. These, too, will represent a wide range of CAA members. In these discussions, CAA members will discuss the most common situations identified in the Issues Report, and how they understand fair use to be important to accomplishing the professional goals of CAA members. During the third phase, that consensus will be reflected in a draft code. The draft will be reviewed by a Legal Advisory Committee, to ensure that it is consistent with the current law on fair use, and will be presented to the CAA Board for its approval. In the fourth and final phase, CAA will disseminate the code by making presentations at visual arts conferences around the country and posting webinars on CAA’s website and those of related organizations.

Patricia Aufderheide, University Professor in the School of Communication at American University and co-director of its Center for Social Media, and Peter Jaszi, Professor of Law and faculty director of the Washington College of Law’s Glushko-Samuelson Intellectual Property Clinic, co-principal investigators on the project, are conducting the research. They have considerable experience in developing codes of best practice for a large number of communities, including documentary filmmakers, dance archivists, poets, research librarians, and journalists. Their methodology and experience is described in their book, Reclaiming Fair Use: How to Put Balance Back in Copyright, University of Chicago Press, 2011. We are also grateful for the expert input of project advisors Virginia Rutledge, an art advisor, art historian, and lawyer who practices in the areas of both copyright and art law, and Maureen Whalen, associate general counsel for the J. Paul Getty Trust.

Throughout CAA’s Fair Use project, we will post updates in CAA News. We hope you will follow our progress.

Please take time to complete the CAA Creativity and

Copyright Survey, arriving by email on Friday, March 8.

CAA Receives Major Mellon Grant

posted by January 14, 2013

The Andrew W. Mellon Foundation has awarded the College Art Association (CAA) a major grant of $630,000 to develop, publish, and disseminate a code of best practices for fair use in the creation and curation of artworks and scholarly publishing in the visual arts. The initiative will examine the intersection of copyright understandings and creative practices of the visual arts community in art production, art scholarship, museum curation, and editing of work on art. The project will be completed over four years, from January 2013 through December 2016. During this period, CAA will produce an issues report documenting the effects of copyright understandings on creative choices and write a code of best practices in fair use for the communities of practice represented by its members.

In noting the importance of this work, Anne Collins Goodyear, CAA board president, observed: “The challenges and uncertainties faced by artists and art historians today in securing rights to reproduce works of art in hardcopy and electronicallyand the difficulties in knowing when the law might require securing such rights—have serious adverse consequences for creative practice. Both scholarly and artistic projects are often compromised or even abandoned because of the arduous and expensive process of clearing permissions. An improved understanding of the scope of fair use and a field-wide agreement on its application will be invaluable to all practitioners in the visual arts.”

By undertaking this critical and timely project, CAA aims to provide much-needed clarification of best practices in the use of third-party copyrighted material, and establish a practicable code of conduct for members of the visual-arts community. In order to create a code that functions across all areas of the visual arts, CAA’s fair use project will involve participants from the fields of art history, studio art, print and online publishing, art museums, and related areas.

Linda Downs, executive director and CEO of the College Art Association emphasized the association’s capacity to lead this effort: “As the premier association in the visual arts, CAA is uniquely positioned to address these challenges. CAA’s membership represents a broad range of stakeholders—including artists, art historians, photographers, curators, writers, and educators, as well as museums, editors, and colleges and universities—who will benefit from the issues report and code of best practices. The organization has a strong record of advocacy on a variety of issues involving intellectual property. Moreover, as a scholarly publisher in the visual arts, CAA is familiar with the challenges associated with the uncertainty surrounding the application of fair use.”

The efforts funded by the Mellon grant will be overseen by a Task Force on Fair Use established by the CAA board in May of last year. The cochairs of the task force are: Jeffrey P. Cunard, long-standing CAA counsel and a managing partner in the law firm Debevoise & Plimpton LLP; and Gretchen Wagner, a member of CAA’s Committee on Intellectual Property and general counsel of ARTstor. In addition to the cochairs, task force members include: Anne Collins Goodyear, CAA board president and associate curator of prints and drawings at the National Portrait Gallery, Smithsonian Institution; Linda Downs, CAA executive director and chief executive officer; Randall C. Griffin, CAA vice president for publications and a professor in the department of art history at Southern Methodist University; and other CAA members with professional experience in studio art, art history, curatorial work, and copyright law.

CAA has engaged two principal investigators to lead the four-year project: Patricia Aufderheide, university professor in the School of Communication and co-director of its Center for Social Media; and Peter Jaszi, professor of law and faculty director of the Washington College of Law’s Glushko-Samuelson Intellectual Property Clinic. Aufderheide and Jaszi, who have significant expertise in successfully developing fair use codes for documentary filmmakers, dance archivists, research librarians, and journalists, will be responsible for conducting the investigatory work that will inform the report and code. Aufderheide and Jaszi will also work with a Community Practices Advisory Committee to review the report and a Legal Advisory Committee to review the code. Two project advisors—Virginia Rutledge, an art advisor, art historian, and lawyer who practices in the areas of both copyright and art law, and Maureen Whalen, associate general counsel for the J. Paul Getty Trust—will contribute expertise during all phases of the project. The task force cochairs, Cunard and Wagner, together with Goodyear, Downs, Aufderheide, and Jaszi will also serve as principal investigators.

CAA approaches this project with an established history of engagement on the issues of copyright and fair use, and gratefully acknowledges the work done in this area by allied scholarly societies including the Visual Resources Association, the Association of Research Libraries, and the New York City Bar Association Art Law Committee (ALC). With the assistance of a start-up grant from the Samuel H. Kress Foundation, awarded in September 2012, CAA recently completed a preparatory phase of the fair use project that will inform the activities now funded by the Mellon Foundation. During this preparatory phase, the task force met with Aufderheide, Jaszi, and CAA’s board of directors to discuss the research methodology and select thought leaders to be interviewed about copyright and fair use practices. Additionally, Aufderheide and Jaszi conducted twenty-five exploratory interviews with some of these thought leaders to help identify the key topics that the issues report and code should address. With this work completed, the task force and principal investigators are in a strong position to move forward with the formal investigative phase of the project.

For more information about the fair use project, please contact Janet Landay, project manager, at jlanday@collegeart.org (212-392-4420) or Virginia Reinhart, CAA marketing and communications associate, at vreinhart@collegeart.org (212-392-4426).