The College Art Association’s (CAA) newly published pamphlet, Code of Best Practices in Fair Use for the Visual Arts, is intended as a guide to assist visual arts professionals in understanding the principle of “fair use” first set forth in the 1976 Copyright Law as it relates to current practice in creative and scholarly work. Over the last two years, a series of focus groups made up of a broad spectrum of practitioners including artists and designers, art and architectural historians, curators and museum professionals, editors, educators and scholars gathered in closed meetings in New York, Washington D.C., Dallas, Chicago and Los Angeles to develop commonly shared guidelines and standards in their respected fields. As emphasized throughout the pamphlet, this inclusive, consensus-based narrative, aims to reassure readers of the Code’s purpose, that is, to provide a practical and certain context for applying fair use to their scholarly and creative endeavors.
The emphasis on consensus underscores in our digital present how central fair use of copyrighted materials has become to the visual arts community even as the interpretation and application of its principles has grown vaguer since its codification in United States law. A presumed right allied to freedom of expression and a protection whose benefits extend far beyond the arts community, access to and knowledge of the ways to employ and apply fair use has become nearly four decades later an essential aspect of contemporary creative and scholarly practice. Thus this CAA Code of Best Practices cannot be a more timely publication, one that continues this organization’s on-going mission to provide its membership with professional standards and guidelines. But, as the meticulous process of consulting and agreement on shared professional understandings laid out in the introduction and the text makes clear and frequently underscores, while the need for a code of best practices in fair use is evident, so too are the limitations of its possible applications. Seeking to address the most common situations while emphasizing the freedom of each member of the visual arts community to choose how to apply fair use, the pamphlet and its principles is intended for consultation and guidance not to establish legal liability or precedent.
The Code is subdivided into five sections of a similar format each covering one of the principles of best practice. These principle areas include Analytical Writing; Teaching about Art; Making Art; Museum Uses; and Online Access to Related Collections and Memory Institutions. Each of these situation/areas is broadly described in an effort to encompass the many ways that these practices might interact with copyright material and fair use as well as the manner by which technology has changed and modified these fair use applications. The right to fair use of copyright is then affirmed in each of these principle areas of best practice. A list of limitations follows, qualifying the nuances of fair use in each area so that readers might apply their own practice and interpretation to individual purpose and circumstance. One aspect that is emphasized in almost every principle of best practice is the need for citation and, just as often, the importance of including a rationale for fair use and, as well, of remaining respectful or faithful to source material.
As both the introduction and an engaging appendix, written by one of the consultants involved in the study, Peter Jaszi, an expert in copyright practice, explicates, fair use as an aspect of the 1976 Copyright Law has shifted in its legal interpretation over time. Indeed, even as the law accorded rights and protection to creators, it purposefully left open the ways cultural materials could be “fairly used”, allowing the interpretation of its doctrine to adapt to changing and evolving circumstances. Jaszi discusses in his essay the four factors and examples of uses set forth in the original law and how critical consideration these aspects –the purpose and character of “transformative” fair use; whether the use is for new, possibly commercial ways; the appropriateness of the copyrighted material in relation to its transformational use; and the potential harm of fair use to the copyright holder–have been qualified and defined by court rulings especially since the 1990s. More recently, judicial decisions have attained consensus on the nature of fair use doctrine, thereby collapsing the four factors into two questions: was the transformation of copyrighted material significantly different or but a substitute for the original and was the material taken appropriate for both the copyrighted material and its fair use? Overall, the appendix provides its readers a balanced approach, one that demonstrates the continued viability of fair use law, its flexibility and its current consideration of good faith in terms of expectation and practice.
Written in a clear, jargon-free manner, Jaszi’s essay offers an articulate and insightful overview of the subtleties of copyright law and fair use and its evolving interpretation, an analysis that, along with the Code and its five principle areas of best practice, gives practical guidance on how -whether making, exhibiting visual art or using it in publishing, teaching, researching, resourcing, and many other areas—one might construe the law and apply its fair use to creative and scholarly practice. With its use of “crowd sourcing” of commonly held values and practices and overview of judicial precedent to discuss and evaluate current application of the law, this Code of Fair Practice will certainly extend our understanding of fair use while serving as a useful guide through what Jaszi notes is the “social bargain” at the heart of copyright law. A welcome addition to the College Art Association’s publications, this pamphlet will no doubt sustain the practice of all those involved with the visual arts for years to come.
By Susan Canning