Visual artists can defend their work from a claim of copyright infringement if fair use is properly applied. The Code of Best Practices in Fair Use for the Visual Arts (Code) by the College Art Association was published recently with the goal of helping arts practitioners better understand how to apply the wily legal concept that is fair use. The Code, based on principles gleaned from conversations and workshops with over 100 visual arts professionals, includes guidance for artists, scholars, educators and museum professionals. While using the code cannot definitively protect you from being sued or losing a copyright infringement lawsuit, individuals who work with the visual arts may use the Code to apply fair use with more confidence.
A fair use is any use of copyrighted material without the permission of the copyright owner that meets the provisions laid out in section 107 of the Copyright Act. A fair use may fall into certain categories such as commentary, criticism, teaching, and news reporting; however, the list in the statute is not exclusive. The courts consider the following four factors to determine whether or not a particular qualifies as fair use: (1) the purpose and character of the use (including whether or not such use is of a commercial nature), (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. The court considers these factors for each particular claim of fair use and can decide how much weight it would like to place on each factor for each separate analysis. Usually in this context, the courts end up condensing these four factors into a simpler two-part analysis: was the use transformative and was the amount of the copyrighted work used proportional?
It can be difficult to predict the outcome of a fair use analysis. Even if you go through the factors described above there is no guarantee that a judge or jury will agree with your reasoning. Furthermore, the existing case law on the subject has produced inconsistent results. The Code attempts to create a framework that is legally sound, consistent, and reflects the actual practices of the visual arts community. The thinking is: a court might be more likely to side with, and a potential plaintiff might be less likely to sue, an entire creative community’s cogent articulation of fair use principles and limitations created by a general consensus of a diverse cross-section of a creative community that has been vetted by respected copyright attorneys. But, then again, use of the Code itself cannot guarantee those results.
The Code operates by laying out principles and limitations for each situation. For example, the third situation is entitled “Making Art” and it encompasses all art creation in the visual arts, from analog to digital and everywhere in-between. The underlying principle for this section states, “Artists may invoke fair use to incorporate copyrighted material into new artworks in any medium, subject to certain limitations.” The limitations include such guidance as “artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that change of medium, without more, may not meet this standard.” Similarly, artists should be able to justify the use of a preexisting work as being directly related to the new work’s artistic objective. As is common amongst the contents of the Code, each situation’s constraints ask that arts practitioners know how he would defend his artistic choices. This correlates well to an artists’ existing practice because it is not just before a court in a copyright infringement action that a well-trained artist must be prepared to defend her work, but also before peers, critics, and herself.
The Code could not have come at a more perfect time. Generally speaking, the case law surrounding fair use is as limited as it is varied in result. Recently, the 2nd Circuit Court of Appeals held that some works by famed appropriation artist Richard Prince that include large portions of photographs taken by Patrick Cariou are fair use. To many, Prince did not sufficiently transform Cariou’s work to justify fair use let alone an ethical artistic practice. In its analysis, the court focused on how Prince altered Cariou’s original photographs with “new expression, meaning, or message.” The court explained that “where Cariou’s serene deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.” However, the court did find that five of Prince’s pieces in the set would have to be re-evaluated by the District Court to determine whether each qualified as fair use. This is but one example of an unpredictable result born from a claim of fair use.
In addition to “Making Art,” the Code describes best practices for the use of visual art in analytic writing, teaching about art, museum uses and online access to related collections in memory institutions. Each situation includes a principle and set of limitations specific to the responses generated by members of each particular community. Similar to “Making Art,” there is an emphasis on practitioners being able to justify their use of an existing copyrighted work, whether it be based on a curatorial, analytic, or pedagogical objective.
At this point, the Code is just starting to make its way into these different visual arts communities. Only time will tell how members of each community will decide to utilize the Code in their own practice. It also remains to be seen how a court may interpret a claim of fair use based upon someone’s reliance on the Code. However, the more widespread the use of the Code the stronger its effects may be. The full Code of Best Practices in Fair Use for the Visual Arts may be found online at the College Art Association’s website: www.collegeart.org/pdf/fair-use/best-practices-fair-use-visual-arts.pdf.