CAA News Today
AAMD Supports the Code of Best Practices in Fair Use for the Visual Arts
posted by Christopher Howard — February 17, 2015
In a letter sent to Linda Downs and DeWitt Godfrey on February 9, 2015, the Association of Art Museum Directors (AAMD) expressed its support of CAA’s newly published Code of Best Practices in Fair Use for the Visual Arts.
Christine Anagnos, AAMD executive director, and Susan Taylor, AAMD president and Montine McDaniel Freeman Director of the New Orleans Museum of Art in Louisinan, write: “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. We are thankful to those who helped to develop the guide over the past two years and recognize the hard work of Peter Jaszi and Patricia Aufderheide.”
CAA Announces Publication of Code of Best Practices in Fair Use for the Visual Arts
posted by CAA — February 09, 2015
The College Art Association (CAA) has published the Code of Best Practices in Fair Use for the Visual Arts, 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. It will be a vital resource for everyone working in the field, including artists, art historians, museum professionals, and editors. Initiated by CAA in 2012, the multi-year effort has been led by the Code’s authors, Peter Jaszi and Patricia Aufderheide, professors of law and communication studies respectively at American University and the leading experts on the development of codes for communities that make use of copyrighted materials in their professional practices.
Linda Downs, CAA executive director, said, “The Code is a crucial contribution to the field as a clear statement on best practices in the fair use of copyrighted materials that directly reflects a consensus from the visual-arts community. CAA is grateful to all of the artists, art historians, museum professionals, and editors, among others, who participated in the project so generously with their time and collective knowledge.”
The Code describes the relevance of fair use in five broad areas of the visual arts field:
- Analytic Writing: When may scholars and other writers about art invoke fair use to quote, excerpt, or reproduce copyrighted works?
- Teaching about Art: When may teachers invoke fair use in using copyrighted works to support formal instruction in a range of settings, including online and distance teaching?
- Making Art: Under what circumstances may artists exercise fair use to incorporate copyrighted material into new artworks in any medium?
- Museum Uses: When may museums and their staffs invoke fair use in using copyrighted works—such as images, text, and time-based and born-digital material—when organizing exhibitions, developing educational materials (within the museum and online), publishing catalogues, and other related activities?
- Online Access to Archival and Special Collections: When may such institutions and their staffs claim fair use to create digital preservation copies and/or enable digital access to copyrighted materials in their collections?
DeWitt Godfrey, CAA president and professor of art and art history at Colgate University, said, “The research undertaken in this project demonstrated that a significant amount of creative and scholarly work has been stunted by a lack of understanding or clear consensus on fair use. This Code provides a straightforward set of principles that will allow those working in the visual arts to determine when they can assert fair use in their work with confidence.”
In January 2014, CAA published Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report, a summary of one hundred interviews with art historians, artists, museum curators, editors, and publishers describing issues related to the use of third-party images in creative and scholarly work. The Issues Report—which revealed significant challenges to creating and disseminating new work because of actual and perceived limitations of copyright—was the subject of ten discussion groups held last summer throughout the country with visual-arts professionals who deal with fair use and copyright issues on a daily basis. The Code is a result of this extensive research.
Peter Jaszi, professor of law in the Program on Information Justice and Intellectual Property at American University’s Washington College of Law, explained that “Although the visual-arts community is impressively diverse, including art-makers, individual scholars, and institutional users, its members came together determined to reach a useful consensus. The Code reflects the range of perspectives and expertise the participants brought to the process.”
Coauthor Patricia Aufderheide, university professor in the School of Communication at American University and director of the Center for Media & Social Impact, said, “Codes of best practices have proven enormously successful in enabling members of other creative communities to do their work well and effectively. They allow individuals to make judgments knowing where they fall in relation to the thinking of their peers—and that lowers risk. Further, codes give museums, broadcasters, insurers, publishers, educational institutions, and their lawyers a new and valuable tool to use in making better, more reasonable assessments of risk.”
During CAA’s 103rd Annual Conference in New York (February 11–14, 2015), the principal investigators of this project and authors of the Code, Patricia Aufderheide and Peter Jaszi, will speak publicly with Judy Metro, editor-in-chief at the National Gallery of Art and chair of CAA’s Committee on Intellectual Property; Jeffrey Cunard, cochair of CAA’s Task Force on Fair Use; and Christine Sundt, editor of Visual Resources: An International Journal of Documentation and former CAA board member. The session, which will take place on Friday, February 13, from 12:30 to 2:00 PM at the New York Hilton Midtown, is free and open to the public.
CAA’s Code of Best Practices in Fair Use for the Visual Arts is funded by the Andrew W. Mellon Foundation with additional support provided by the Samuel H. Kress Foundation.
About CAA
The College Art Association is dedicated to providing professional services and resources for artists, art historians, and students in the visual arts. CAA serves as an advocate and a resource for individuals and institutions nationally and internationally by offering forums to discuss the latest developments in the visual arts and art history through its Annual Conference, publications, exhibitions, website, and other programs, services, and events. CAA focuses on a wide range of advocacy issues, including education in the arts, freedom of expression, intellectual-property rights, cultural heritage and preservation, workforce topics in universities and museums, and access to networked information technologies. Representing its members’ professional needs since 1911, CAA is committed to the highest professional and ethical standards of scholarship, creativity, criticism, and teaching.
For more information please contact Janet Landay, CAA fair use initiative project manager, at 212-392-4420. To contact Patricia Aufderheide or Peter Jaszi, please contact Kelly L. Alexander, director of public relations, American University, at 202-885-5952.
CAA to Publish Code of Best Practices in Fair Use for the Visual Arts
posted by Christopher Howard — February 04, 2015
On February 9, 2015, in time for the Annual Conference, CAA will publish the Code of Best Practices in Fair Use for the Visual Arts, 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. It will be a vital resource for all those working in the field, including artists, art historians, museum professionals, and editors.
Printed copies of the Code will be available at Registration at the conference and at the CAA booth in the Book and Trade Fair throughout the week. It will also be available online beginning February 9.
If you are attending the conference, please come to an introductory presentation about the Code on Friday, February 13, 12:30–2:00 PM, in the Trianon Ballroom, Third Floor, New York Hilton Midtown.
CAA’s Code of Best Practices in Fair Use for the Visual Arts is funded by the Andrew W. Mellon Foundation with additional support provided by the Samuel H. Kress Foundation.
Soliciting Sign-On for DMCA § 1201 Rulemaking
posted by Linda Downs — November 25, 2014
CAA has signed on to this Petition to the US Copyright Office for Proposed Exemption Under 17 U.S.C. 1201 to the 1998 Digital Millennium Copyright Act (DMCA) for the use of audiovisual media by college and university students or faculty in an educational setting. The DMCA prevents users from unlocking digital media or software. Congress has allowed review of the DMCA every three years to determine whether the law is affecting legitimate use of audiovisual material. In compliance to this three-year review the US Copyright Office has requested that examples be gathered of evidence where students or faculty were stopped from including a video clip in their teaching materials because of no access to decryption codes.
Student lawyers at American University are working on gathering examples and would appreciate hearing from those CAA members who have attempted to use audiovisual material from DVDs or off the web and were prevented from doing so. Please refer to the Google Form created to gather evidence and provide an easy forum for individuals to share their stories. This information will then be sent to the US Copyright Office to demonstrate the need for an exemption for students and faculty use of locked audiovisual materials. Deadline: December 30, 2014.
We would also like to share a piece for Forbes, written by Peter Decherney, which is an interesting read about some of the technology policy issues raised by the DMCA rulemaking.
Thank you for participating in this important petition.
CAA Update from the President
posted by DeWitt Godfrey — November 13, 2014
DeWitt Godfrey, professor of art and art history at Colgate University in Hamilton, New York, is president of the CAA Board of Directors.
CAA is moving ahead on several strategic goals. After a year of investigation and discussion with over 200 artists, art historians, curators, editors and reproduction rights officers, Professors Patricia Aufderheide and Peter Jaszi are drafting the new Code of Best Practices in Fair Use in the Visual Arts which will be reviewed by the Task Force on Fair Use, the Committee on Intellectual Property, the Professional Practices Committee, and an independent Legal Advisory Committee. We anticipate that the code will be presented at the Annual Conference in February 2015.
At the October 26th Board meeting, the formation of two task forces was approved: one to review CAA’s governance structure, and one to review its professional committees. As a greater number of faculty are now part-time, the board and committee requirements have to be adjusted so that the best expertise is brought to CAA within the most economical timeframes. The Board also had a lively discussion on the best directions to be taken regarding advocacy and how CAA can respond quickly and efficiently to issues that affect members’ daily work. We are exploring the creation of a task force on advocacy.
The CAA Board and senior staff held a day-long retreat which focused on a vision for the future of the annual conference—a more flexible structure, greater opportunities for interdisciplinary discussion, serving the needs and interests at each stage of a career in the visual arts, and the ability to quickly address issues that arise in the field, have an international perspective and participation, and reach those members who are not able to attend the conferences.
New, updated volumes of the Directories of Graduate Programs are now available through CAA’s website. From the data published in the directories, CAA will draw statistical information about all the visual-arts subdisciplines, mapping important changes in the field regarding enrollment and employment. We plan to make information from the past four years available to members in the coming months.
The September issue of The Art Bulletin features the third essay in the “Whither Art History?” series, as well as essays on Jan van Eyck and commemorative art, Hans Burgkmair and recognition, Watteau and reverie, and contemporary Indian Art from the 1985-86 Festival of India. The latest issue of Art Journal includes a forum called “Red Conceptualismos del Sur/Southern Conceptualisms Network,” featuring articles printed in their original Spanish and Portuguese alongside new English translations—this is the first foray into multilingual publishing for CAA. Art Journal Open’s first web editor, Gloria Sutton, associate professor at Northeastern University, has commissioned features from the artist Karen Schiff and the new-media historian Mike Maizels, as well as a dialogue between the curator Becky Huff Hunter and the artist Tamarin Norwood. The vision for this website is to provide an online space for artists’ works, experimental scholarship, and conversations among arts practitioners. And caa.reviews, now open access, includes nearly 2,500 reviews of books, exhibition catalogues, and conferences on art, as well as an annual list of completed and in-progress art history dissertations. Thirty-four field editors commission reviewers to address new publications, exhibitions, and exhibition catalogues and videos in every area of the visual arts. The new copublishing relationship between CAA and Taylor & Francis that supports all three CAA journals will complete its first year this month with a marked increase in readership. We are encouraging authors to use the multimedia resources offered at Taylor & Francis Online as well as its citation app.
The Andrew W. Mellon Foundation has awarded CAA and the Society for Architectural Historians a grant to cooperatively carry out research and develop guidelines in digital art and architectural history for promotion and tenure in the workforce. With the increased use of digital platforms in research and publishing there is a need for guidelines that reflect the best practice in evaluating digital art and architectural history. A task force will be formed of two art historians, two architectural historians, a librarian, a museum curator, a scholar from another humanities or social science field with expertise in digital scholarship, and a graduate student or emerging professional in art history or architectural history. CAA will hire a part-time researcher to gather information on current practices from faculty members throughout the country. Please see the Online Career Center for the listing.
CAA, like other learned, membership societies, faces significant challenges and opportunities for the future. The changing landscape of publication, academic workforce issues, advocating for the arts and humanities, serving a changing membership and the field are areas where CAA has and will continue to make a difference, by building on our legacy of leadership and embracing the necessary changes required to meet our mission and vision.
Update on the CAA Fair-Use Initiative
posted by CAA — June 25, 2014
Professors Patricia Aufderheide and Peter Jaszi are now in the second phase of CAA’s Fair Use Initiative. The first phase, begun in January 2013, involved interviews with visual arts professionals regarding the use of third-party materials in their creative work and publications. The interviews were summarized by Aufderheide and Jaszi and published by CAA earlier this year: https://www.collegeart.org/news/2014/01/29/caa-publishes-fair-use-issues-report/
This week, Aufderheide and Jaszi completed the last of ten discussion group meetings held over the past few weeks in New York, Dallas, Washington, D.C., Chicago and Los Angeles, in which visual arts professionals explored various situations where fair use can be invoked when using third-party materials and images. Each discussion group consisted of ten to twelve artists, art historians, museum directors, curators, and editors, who were presented with hypothetical scenarios based on the Issues Report. The ensuing discussions have been intense and extremely valuable, providing insights into broadly shared standards for relying on fair use when using copyrighted material.
In the third phase of the project Aufderheide and Jaszi will use the results of the discussion groups to synthesize a code of best practices. A preliminary draft will be reviewed by the Task Force on Fair Use, the Committee on Intellectual Property, the project advisors, and a Legal Advisory Committee before a final version is presented to the CAA Board of Directors for approval.
CAA is pleased to announce the appointment of new advisors to the Fair Use Initiative. Chris Sundt, Editor, Visual Resources: An International Journal of Documentation and past chair of the CAA Committee on Intellectual Property; and Paul Catanese, Director of Interdisciplinary Arts & Media MFA Program, Columbia College Chicago and past chair of the CAA New Media Caucus have agreed to serve in this capacity. The advisors will contribute to the review of the draft code, propose possible candidates for the legal review committee and assist in the dissemination of the code once the CAA Board of Directors has approved it.
A report on the Fair Use Initiative will be presented at the Annual Conference in New York in February 2015.
CAA Participates in Roundtables on “Orphan Works and Mass Digitization”
posted by Anne Collins Goodyear — March 26, 2014
On March 10–11, 2014, the United States Copyright Office (USCO) held a series of public roundtables in Washington, DC, exploring the question of “Orphan Works and Mass Digitization.”[1] Collectively, these discussion panels constituted a follow up to a Notice of Inquiry circulated by USCO in the fall of 2012, in response to which CAA filed reply comments in March 2013.[2] Given CAA’s long advocacy of legislation to offer protection to those individuals and institutions using orphan works, and after consulting with CAA members familiar with concerns related to orphan works,[3] I represented the organization in two sessions, one addressing the “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs” (Session 4) and the other “Types of Users and Uses Subject to Orphan Works Legislation” (Session 5).[4]
“Orphan works” constitute a class of materials for which no copyright owner can be located.[5] They have long posed a thorny challenge for scholars or artists who might seek to reproduce them, but who cannot locate the creator or a source from which to license them for purposes not considered “fair use.” As a publisher of leading journals—Art Bulletin and Art Journal, and caa.reviews—and an advocate for its members who might similarly seek to use orphan works, CAA has consistently argued in favor of orphan works legislation that 1) would significantly limit the liability of a user of an orphan work who had executed a diligent search for the work’s copyright owner, and 2) provide a safe harbor for not-for-profit cultural institutions, engaged in non-commercial activities, that had exercised similar care and that took steps to cease the infringement. At the same time, CAA has spoken to the importance of the attribution of the work and has argued that if a copyright holder comes forward that rights holder be entitled to a reasonable licensing fee if, indeed, the use is not considered “fair” as allowed under the law.
Consistent with positions taken by CAA previously, the organization argued that all copyrighted works, including photographs, should be protected by orphan works legislation. Photographs, which can be notoriously difficult to associate with their makers, have proven particularly tricky as a group of objects, actually being excepted from a directive, intended to facilitate the non-commercial public interest use of orphan works, passed by the European Union.[6] However, not to consider photographs as part of the larger category of orphan works would be extremely limiting from the perspective of CAA given the strong interest of its members in sources of visual information. Categorically excluding photographic and other works of visual art from orphan works eligibility would disadvantage users of images, including artists, scholars, and publishers, who would face continued risks of being sued for copyright infringement despite being unable to determine the identity of the copyright owner at the time of their use. The purpose of orphan works legislation is to mitigate the legal risk of using works that are part of our shared culture. It is because those risks can have chilling implications, adversely affecting creative work by artists and scholars, that CAA has been committed to support orphan works legislation.
Given the diverse range of purposes to which copies of orphan works might be put by its members, CAA has argued that both commercial and non-commercial uses of such material should be protected, given the extraordinary difficulty of teasing apart such interests. Because artists (like scholars) can be both creators and users of copyrighted items, they may seek to make and market work incorporating reproductions of orphan works. In similar fashion, academic or independent scholars or museum professionals make seek to illustrate orphan works in publications made available for sale. While recognizing that a voluntary registry (or registries) of copyrighted works, such as photographs might be useful, CAA does not endorse requiring such registration, nor does it feel that the terms of a “diligent search” for the holders of copyright of orphaned works should be prescribed, arguing instead that the best approach to such research would be better determined on a case-by-case basis.
Although previous legislation, S. 2913 (the Shawn Bentley Act) faltered in the House of Representatives in 2008, and was thus not enacted into law, USCO is now reexamining the potential value of pursuing orphan works legislation anew—both with regard to the occasional or isolated use of orphan works as well as mass digitization. These efforts reflect the influence of new technology and ongoing litigation, such as cases concerning Google Books and the HathiTrust, where mass digitization was found by the US District Court for the Southern District of New York to constitute “fair use.”[7]
The growing reliance of many libraries and archives upon the principle of “fair use” as a justification for digitization has led USCO to consider whether this defense obviates the need for orphan works legislation. CAA has argued that this is not the case, recognizing that some uses of copyrighted material may not constitute “fair use.” Thus CAA continues to appreciate the value of such legislation to clarify the class known as “orphan works” to protect the needs of its membership, even as it advocates for the development of best practices guidelines for the fair use of copyrighted material.
CAA intends to submit comments related to the roundtable by USCO’s filing deadline of April 14th. Should any CAA members wish to offer thoughts related to this topic to be considered in relation to such a filing by CAA, please contact Executive Director Linda Downs (ldowns@collegeart.org) or President Anne Collins Goodyear (AGoodyear@bowdoin.edu) by April 7th.
Endnotes
[1] For more information on this event and other Notices of Inquiry by the US Copyright Office (USCO) on this topic, please see: http://www.copyright.gov/orphan/. Transcripts and video of the roundtables will be posted when they become available on the website of the USCO.
[2] CAA’s submission of these comments is described in CAA’s resources on “Intellectual Property and the Arts” which provides a link to these comments: http://www.collegeart.org/ip/orphanworks.
[3] For their generosity with their time and expertise, I thank Jeffrey P. Cunard, Christine L. Sundt, Judy Metro, Doralynn Pines, Eve Sinaiko, Linda Downs, and Betty Leigh Hutcheson. Chris Sundt and Jeff Cunard generously provided comments on earlier drafts of this posting, for which I am grateful. CAA’s long history of involvement with orphan works is detailed in CAA’s recent submission of comments, prepared by CAA counsel Jeffrey P. Cunard, on Orphan Works and Mass Digitization to USCO, in March 2013; please see: http://www.copyright.gov/orphan/comments/noi_11302012/College-Art-Association.pdf. http://www.collegeart.org/ip/orphanworks.
[4] Due to the strong outpouring of interest in the topic, participation by each organization had to be limited, and CAA prioritized these sessions.
[5] Further discussion of orphan works can be found on CAA’s website under “Intellectual Property and the Arts,” at http://www.collegeart.org/publications/ow.
[6] These challenges and the directive passed by the European Union are discussed in the February 10, 2014 USCO Notice of Inquiry for Orphan Works and Mass Digitization, available at http://www.copyright.gov/orphan/. See specifically the discussion of the topics raised by Session 4: “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs.”
[7] For more information on these decisions, including links to them, please see: See http://www.publicknowledge.org/files/google%20summary%20judgment%20final.pdf and Andrew Albanese, “Google Scanning is Fair Use Says Judge,” Publishers Weekly, October 11, 2012. http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/54321-in-hathitrust-ruling-judge-says-google-scanning-is-fair-use.html. I thank Chris Sundt for recommending these resources.
CAA Participates in Roundtables on “Orphan Works and Mass Digitization”
posted by Linda Downs — March 26, 2014
On March 10–11, 2014, the United States Copyright Office (USCO) held a series of public roundtables in Washington, DC, exploring the question of “Orphan Works and Mass Digitization.”[1] Collectively, these discussion panels constituted a follow up to a Notice of Inquiry circulated by USCO in the fall of 2012, in response to which CAA filed reply comments in March 2013.[2] Given CAA’s long advocacy of legislation to offer protection to those individuals and institutions using orphan works, and after consulting with CAA members familiar with concerns related to orphan works,[3] I represented the organization in two sessions, one addressing the “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs” (Session 4) and the other “Types of Users and Uses Subject to Orphan Works Legislation” (Session 5).[4]
“Orphan works” constitute a class of materials for which no copyright owner can be located.[5] They have long posed a thorny challenge for scholars or artists who might seek to reproduce them, but who cannot locate the creator or a source from which to license them for purposes not considered “fair use.” As a publisher of leading journals—Art Bulletin and Art Journal, and caa.reviews—and an advocate for its members who might similarly seek to use orphan works, CAA has consistently argued in favor of orphan works legislation that 1) would significantly limit the liability of a user of an orphan work who had executed a diligent search for the work’s copyright owner, and 2) provide a safe harbor for not-for-profit cultural institutions, engaged in non-commercial activities, that had exercised similar care and that took steps to cease the infringement. At the same time, CAA has spoken to the importance of the attribution of the work and has argued that if a copyright holder comes forward that rights holder be entitled to a reasonable licensing fee if, indeed, the use is not considered “fair” as allowed under the law.
Consistent with positions taken by CAA previously, the organization argued that all copyrighted works, including photographs, should be protected by orphan works legislation. Photographs, which can be notoriously difficult to associate with their makers, have proven particularly tricky as a group of objects, actually being excepted from a directive, intended to facilitate the non-commercial public interest use of orphan works, passed by the European Union.[6] However, not to consider photographs as part of the larger category of orphan works would be extremely limiting from the perspective of CAA given the strong interest of its members in sources of visual information. Categorically excluding photographic and other works of visual art from orphan works eligibility would disadvantage users of images, including artists, scholars, and publishers, who would face continued risks of being sued for copyright infringement despite being unable to determine the identity of the copyright owner at the time of their use. The purpose of orphan works legislation is to mitigate the legal risk of using works that are part of our shared culture. It is because those risks can have chilling implications, adversely affecting creative work by artists and scholars, that CAA has been committed to support orphan works legislation.
Given the diverse range of purposes to which copies of orphan works might be put by its members, CAA has argued that both commercial and non-commercial uses of such material should be protected, given the extraordinary difficulty of teasing apart such interests. Because artists (like scholars) can be both creators and users of copyrighted items, they may seek to make and market work incorporating reproductions of orphan works. In similar fashion, academic or independent scholars or museum professionals make seek to illustrate orphan works in publications made available for sale. While recognizing that a voluntary registry (or registries) of copyrighted works, such as photographs might be useful, CAA does not endorse requiring such registration, nor does it feel that the terms of a “diligent search” for the holders of copyright of orphaned works should be prescribed, arguing instead that the best approach to such research would be better determined on a case-by-case basis.
Although previous legislation, S. 2913 (the Shawn Bentley Act) faltered in the House of Representatives in 2008, and was thus not enacted into law, USCO is now reexamining the potential value of pursuing orphan works legislation anew—both with regard to the occasional or isolated use of orphan works as well as mass digitization. These efforts reflect the influence of new technology and ongoing litigation, such as cases concerning Google Books and the HathiTrust, where mass digitization was found by the US District Court for the Southern District of New York to constitute “fair use.”[7]
The growing reliance of many libraries and archives upon the principle of “fair use” as a justification for digitization has led USCO to consider whether this defense obviates the need for orphan works legislation. CAA has argued that this is not the case, recognizing that some uses of copyrighted material may not constitute “fair use.” Thus CAA continues to appreciate the value of such legislation to clarify the class known as “orphan works” to protect the needs of its membership, even as it advocates for the development of best practices guidelines for the fair use of copyrighted material.
CAA intends to submit comments related to the roundtable by USCO’s filing deadline of April 14th. Should any CAA members wish to offer thoughts related to this topic to be considered in relation to such a filing by CAA, please contact Executive Director Linda Downs (ldowns@collegeart.org) or President Anne Collins Goodyear (AGoodyear@bowdoin.edu) by April 7th.
Endnotes
[1] For more information on this event and other Notices of Inquiry by the US Copyright Office (USCO) on this topic, please see: http://www.copyright.gov/orphan/. Transcripts and video of the roundtables will be posted when they become available on the website of the USCO.
[2] CAA’s submission of these comments is described in CAA’s resources on “Intellectual Property and the Arts” which provides a link to these comments: http://www.collegeart.org/ip/orphanworks.
[3] For their generosity with their time and expertise, I thank Jeffrey P. Cunard, Christine L. Sundt, Judy Metro, Doralynn Pines, Eve Sinaiko, Linda Downs, and Betty Leigh Hutcheson. Chris Sundt and Jeff Cunard generously provided comments on earlier drafts of this posting, for which I am grateful. CAA’s long history of involvement with orphan works is detailed in CAA’s recent submission of comments, prepared by CAA counsel Jeffrey P. Cunard, on Orphan Works and Mass Digitization to USCO, in March 2013; please see: http://www.copyright.gov/orphan/comments/noi_11302012/College-Art-Association.pdf. http://www.collegeart.org/ip/orphanworks.
[4] Due to the strong outpouring of interest in the topic, participation by each organization had to be limited, and CAA prioritized these sessions.
[5] Further discussion of orphan works can be found on CAA’s website under “Intellectual Property and the Arts,” at http://www.collegeart.org/publications/ow.
[6] These challenges and the directive passed by the European Union are discussed in the February 10, 2014 USCO Notice of Inquiry for Orphan Works and Mass Digitization, available at http://www.copyright.gov/orphan/. See specifically the discussion of the topics raised by Session 4: “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs.”
[7] For more information on these decisions, including links to them, please see: See http://www.publicknowledge.org/files/google%20summary%20judgment%20final.pdf and Andrew Albanese, “Google Scanning is Fair Use Says Judge,” Publishers Weekly, October 11, 2012. http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/54321-in-hathitrust-ruling-judge-says-google-scanning-is-fair-use.html. I thank Chris Sundt for recommending these resources.
Watch a Panel Discussion on CAA’s Fair-Use Initiative from the 2014 Annual Conference
posted by Janet Landay, Program Manager, Fair Use Initiative — March 07, 2014
In late January CAA published Copyright, Permissions and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities. The report—available as a free download on CAA’s website—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. These findings are part of an ongoing fair-use initiative that will conclude with the development of a code of best practices related to the use of copyrighted materials.
You can now go to CAA’s YouTube page to watch a discussion about the fair-use initiative that took place at the 2014 Annual Conference in Chicago. In this video, Christine Sundt, chair of CAA’s Committee on Intellectual Property, moderates a discussion with the project’s lead researchers, Patricia Aufderheide and Peter Jaszi, professors of communications and law, respectively, at American University in Washington, DC; Anne Collins Goodyear, president of the CAA Board of Directors; Jeffrey Cunard, CAA’s legal counsel and cochair of the Task Force on Fair Use; and Paul Catanese, associate chair and associate professor in the Department of Interdisciplinary Arts at Columbia College Chicago and chair of the New Media Caucus, a CAA affiliated society.
Please share this video with your friends and send CAA your thoughts about the project!
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.
Image Caption
Patricia Aufderheide displays the recently published Issues Report during the Committee on Intellectual Property’s session at the 2014 Annual Conference in Chicago.
Report on “Fair Use: Art and Copyright online” at Eyebeam Artists in Conversation
posted by Linda Downs — February 05, 2014
On Saturday, January 25, 2014, New York’s Eyebeam Art + Technology Center held a panel discussion on fair use, art, and copyright online. The three speakers were Patricia Aufderheide, Codirector of the Center for Social Media at American University and one of the Principal Investigators for CAA’s Fair Use Initiative (http://www.cmsimpact.org/fair-use), Elisa Kreisinger, video artist and artist-in-residence at Eyebeam and Public Knowledge (http://elisakreisinger.wordpress.com/), and Michael Weinberg, Co-Vice President of Public Knowledge, a digital advocacy group in Washington DC (http://publicknowledge.org/).
Kreisinger began the discussion by presenting her work Mad Men: Set Me Free, a video based on dialogue among the female characters in the television series and remixed into an effective and witty feminist presentation. Kreisinger recounted the challenge she faced posting her video on YouTube, when the hosting site automatically took down the piece because of a scanning system that alerted Mad Men’s producer, Lionsgate Films, about the work. Lionsgate has an ongoing policy with YouTube that asks the company to remove anything from the site that uses their films and TV shows. Kreisinger is in the process of appealing this action. She organized Eyebeam’s panel in order to air her concerns and engage two advocates of the fair use principles that are part of the copyright law to open the discussion on what artists can do in similar situations. Kreisinger stated that when she was faced with YouTube takedowns, Aufderheide and Peter Jaszi’s book, Reclaiming Fair Use: How to Put Balance Back in Copyright, was very helpful in guiding her actions. Especially as an artist working on her own, the book helped her prepare a fair use defense of using sections of the television series for her work.
Kreisinger then asked Aufderheide and Weinberg to discuss the principle of fair use. They described the original intent of copyright law: to promote the dissemination of creative work while attributing credit and ownership to the originator. The complexity of copyright law can be daunting to individual creators of new work. Fair use was instituted to allow users of copyrighted works greater leeway of access and use in certain circumstances. Reclaiming Fair Use discusses what the courts focus on in disputes regarding copyright and fair use: transformativeness (did you re-use the material for a new purpose, and thus add value to the work?) and appropriateness (did you use the right amount of the work, which could be up to 100% if you have a go od reason?). These questions set the priorities, for today’s courts, for interpreting the traditional “four factors” that the law sets down to consider: the character of the new use, the nature of the original work, the amount, and effect on market value.
But many artists don’t know their rights. Aufderheide discussed the Issues Report recently-released by CAA (http://www.collegeart.org/pdf/FairUseIssuesReport.pdf), which summarized 100 recent interviews with art historians, artists, museum curators, editors and publishers regarding issues with third-party images in creative and scholarly work. As she and Peter Jaszi, professor of law at American University, wrote in the report, 34% of the visual arts professionals interviewed altered or abandoned a work because of copyright: 21% were artists, 38.3% were art historians and curators and 57% were editors and publishers. This indicates a critical loss of creative and scholarly work due to complications and costs of copyright and licensing images. There is no doubt that confusion about the lawful use of fair use has led to a reluctance to employ it; this in turn has had a chilling effect on the visual arts community.
Kreisinger had completed a survey of digital artists, especially remixers, and discovered that many said they did know they had fair use rights, but found them blocked by scanning systems used by hosting platforms such as YouTube that identify copyrighted work. The Digital Millennium Copyright Act of 1998 protects Internet hosts from monetary liability if they take down work that copyright holders claim infringes on their rights in a work. The automated systems finding digital matches do not discriminate between fair use and infringement. Sometimes artists’ work, even when employed under fair use, was matched with advertising according to a previous contract between Google and copyright holders, and sometimes it was taken down. For many artists, it feels like a David and Goliath situation.
Both Aufderheide and Weinberg acknowledged the frustrating situation of the ad matches, and emphasized the importance of bringing counter-takedown notices when your work has been unfairly taken down. Most takedowns happen as a result of automatic searches of databases, which don’t distinguish fair uses from infringing uses. So counter-takedowns are crucial to keeping work circulating. Artists, they noted, get tired of contesting sometimes-bogus claims, but persistence is critical to preventing private censorship.
Aufderheide noted that it is hard to push back against a takedown notice unless you are sure you are within your fair use rights. In some fields, codes of best practices exist, identifying common practices that employ fair use, asserting the rationale for that employment and also showing fair use’s limits in those situations. The Code of Best Practices in Fair Use for Online Video is one such code; another is the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Both have been used by remixers making counter-takedown arguments.
The College Art Association has decided to create a code of best practices in fair use for the visual arts communities. Over the next six months Aufderheide and Jaszi will be conducting discussion groups to continue to develop a code of best practices in utilizing fair use for creative and scholarly work. These discussions will be held in Chicago, Dallas, Los Angeles, New York and Washington, D.C. with art historians, artists, museum curators, editors, publishers, visual resources officers and gallerists. They will provide a basis for the development of a code of best practices, which will be reviewed by CAA’s Committee on Intellectual Property, its Task Force on Fair Use, and a Legal Advisory Committee. Once finalized, the code of best practices will be presented to the CAA Board of Directors for approval and widely disseminated.