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Fair use in the visual arts

Wondering about copyright? Finally, a freely available guide to fair use (in accordance with American law) for the visual arts.

I’ve never met an artist who didn’t have a concern about copyright, either protecting their own work or in their remix of someone else’s artwork. In fact, I recently wrote about my own dilemma with regard to fair use.

Well, good news - we now have free access to a terrific guide to fair use for artists. Note though that this information only interprets American copyright law and every country has their own way of doing copyright. That being said, this Code is a great place to start.

The College Art Association (CAA) has been working on this project for several years now. It began with the 2014 publication of an issues report on copyright, permissions and fair use for the visual arts community and concludes with the just released 2015 Code of Best Practices in Fair Use for the Visual Arts.

The project was led by Patricia Aufderheide and Peter Jaszi, both experts in copyright law and both professors at American University. Funded by the Andrew W. Mellon Foundation with additional funding from the Samuel H. Kress Foundation, this complete Code of Best Practices is a clear and very accessible interpretation of the law.

Cutting to the quick, what do I think is the key principle conclusion? So as not to risk misinterpreting, I’ll quote from the Code itself, section 3, "Making Art" (p11):

“Artists may invoke fair use to incorporate copyrighted material into new artworks in any medium, subject to certain limitations:


• Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard.

• The use of a preexisting work, whether in part or in whole, should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.

• Artists should avoid suggesting that incorporated elements are original to them, unless that suggestion is integral to the meaning of the new work.

• When copying another’s work, an artist should cite the source, whether in the new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so.”

The entire document is important reading. There are sections on fair use with regard to teaching about art as well as sections on museum uses and online collections. Note also Peter Jaszi's "Fair Use Today" (Appendiz A) which puts the concept of fair use in legal and cultural context.

Thanks to Hyperallergic for the heads up on this. You can read their story on the publication of the Code here.

Find the entire booklet, Code of Best Practices in Fair Use for the Visual Arts, published by the College Art Association here

Very highly recommended for everyone who has anything to do with the arts.