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CAA’s Fair-Use Specialists Answer Your Questions

posted by Patricia Aufderheide — Mar 14, 2016

Patricia Aufderheide is a professor in the School of Communication and director of its Center for Media & Social Impact, School of Communication, American University; and Peter Jaszi is a professor at the Washington College of Law, Program on Information Justice and Intellectual Property, American University.

Since CAA’s Code of Best Practices was released in February 2015, we have met with many groups and individuals in the visual arts, and we have witnessed major policy changes taking place across the visual arts field as a result of the Code.

Recently, two major organizations announced an easing of copyright restrictions that will make publishing about art infinitely easier. In late February, the Robert Rauschenberg Foundation announced new guidelines for fair use that will “make images of Rauschenberg’s artwork more accessible to museums, scholars, artists, and the public.” In its press release, the foundation cites the prohibitive costs associated with rights and licensing, as well as the obstacles copyright restrictions create in converting print publications to online formats.

Also in the past few weeks, the Association of Art Museum Directors (AAMD) announced that it is revoking its guidelines on thumbnail images in online publications, which restricted the fair use of works of art to small-scale reproductions with low resolutions. Furthermore, it encouraged its members to rely on CAA’s Code of Best Practices until such time that they prepare new policies of their own. Additional important changes have taken place at Yale University Press, where they now support reliance on fair use in scholarly catalogues, and at the Museum of Fine Arts, Houston, which relied on CAA’s Code when designing the online catalogue of its collection. Other museums are following suit, as are visual artists.

As we look back on one year living with and promoting the Code, we wanted to pull together some of the most common questions we received, with answers! (You will also find these questions added to the FAQs on CAA’s website.) We have been consistently amazed, but not surprised, by the interest, curiosity, and the sheer will the visual arts field has employed in applying fair use.

Is fair use only applicable to non-commercial uses?

Fair use is applicable whether the use is commercial or non-commercial. That fact is very well established in law. Recently, the appeals court decision supporting Google Books’ use of copyrighted books as fair use explicitly says, “Google’s profit motivation does not in these circumstances [that is, Google’s transformative use of the information] justify denial of fair use.” The same would be true when an otherwise qualifying fair use occurred in the setting of a print publication offered for sale.

This is not a new or novel proposition. In fact, for the last 175 years, almost all of the creators who successfully asserted fair use have been engaged in commerce, in a big or small way. That’s because, under the prevailing definition copyright law, most things that we do in our professional lives (write, make art, publish books) are “commercial.” If money will or may change hands, that’s enough – even if the transaction is done without the expectation of profit. So treating commerciality as a knock-out factor would be the death knell of a meaningful fair use doctrine.

It is true that the non-commercial character of a use may be one feature that can add to a fair use claim. But it is not a particularly important one. Likewise, the size of the print run generally is not a relevant consideration in assessing the validity of fair use. The key to fair use is making sure your use is “transformative,” that is, using the material for a different purpose than the market purpose.

There’s more about this at pages 15-16 of the Code.

Is the Code only applicable to the so-called fine arts? What about artists working in design or photography?

The Code is carefully crafted to provide a reasoning framework in five common situations in the visual arts: analytic writing, teaching, making art, museum work, and archive/collections digital display. Any artist, teacher, writer, or curator can apply the Code’s fair use reasoning if they are engaged in one (or several) of these activities. So can students in the field, and so can independent visual arts professionals, and even amateurs. Many of the activities that graphic designers and photographers engage in give rise to the same copyright questions that confront other visual arts professionals. Sometimes, however, their work may involve other issues—trademark questions, for example, contractual disputes, that fall outside the scope of the Code. The important point is that fair use is for everyone, not just for a privileged few.

What if rights holders or brokers such as ARS and VAGA don’t accept my fair use claim?

In the first instance, of course, what is (or isn’t) fair use is for the user to decide. Rights holders and their agents don’t have the last word (or any word) on this determination. And, at least so far, they haven’t chosen to make a case of any situation in which a user proceeded without license. If your uses are made within the terms of the Code, and you are able to explain how that is true, you have such a solid argument for fair use that rights holders will be in deep peril of wasting their money and time by bringing any legal action. That doesn’t mean that “nastygrams”—letters demanding payment or expressing outrage and issuing threats of legal action—couldn’t be sent. People are free to write whatever they want in letters, even if it is not true.

You may decide, of course, not to employ fair use if you think rights holders may see it as an unfriendly act, and decide not to like you any more. Personal relationships matter in any field.

But if a rights holder threatens action in an unrelated area—for instance, threatening to withhold access to an artist for a later project, or to raise fees for an unrelated work to cover the lost license—you might want to document it. This might be an illegal act on their part.

How big can images get under fair use on a website? We used to have the pixel sizes that AAMD prescribed, but they have retired those, and currently refer us to the Code. But the Code has no specifics on that.

The Code offers no specific recommendations on image size for any purpose, and that is a deliberate choice. The heart of fair use is repurposing material and using what is appropriate for that new purpose. Therefore, individual visual arts professionals need to ask themselves what size is appropriate for any image used to accomplish their objectives. The question always is the same: what amount is (or what reproduction quality) is reasonable. And the answer to this question will always vary according to circumstance.  The requirements of a scholarly monograph, for example, may be different from those of a local art blog. No one wants a document that provides a reasoning framework across fields to offer numerical prescriptions. That would not only be hazardous legally (uses have to be appropriate to the specific transformative purpose), but would run the risk of being sadly and quickly outdated, given the fast pace of digital change.

The decision of the AAMD to withdraw its 2011 recommendations on the size of “thumbnails” is an illustration of this fact.  Only a few years ago, this was a pioneering document, but as visual arts professionals have become more familiar with fair use, and both practices and expectations around the use of images to support discourse (especially on-line) changed, what had once offered freedom came quickly to feel like a straitjacket.

Of course, institutions may still choose to adopt rules of thumb on image size for internal use, to simplify day-to-day decision-making. But these always should yield to case-by-case consideration when they stand in the way of completing worthwhile projects.

I don’t understand how to employ fair use when I have to get an image from a museum or archive. Often, they will want to charge me a fee just to obtain that reproduction.

Yes, if you need someone’s permission to get access to material you need, you can’t rely on fair use to get it. As a practical matter, fair use only can be employed by someone who already has independent access to the same or similar documentation. The flip side of this proposition, of course, is that if you can find appropriate documentation from another source, you don’t have to pay reproduction or access fees to the collection that holds the original. Reproduction and access fees are common; many collections still use them to cover the costs of serving you. Sometimes people confuse these with copyright licenses, but it should be clear in the contract what exactly you’re paying for. Increasingly, public museums are posting images, particularly of works in the public domain, to digital platforms. Their goal is to increase public access and limit the amount of work their own staffs have to do.