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Fair Use in the Visual Arts: Detroit Happenings

posted by Patricia Aufderheide — May 06, 2015

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