Open@VT

Shepard Fairey, Barack Obama “Hope” poster, 2008

Why Copyright? Why Visual Art?

Copyright exists to allow creative ideas to flourish. It promotes making and the dissemination of ideas by providing creators with protections against the misuse of their work. However, many people abandon projects due to copyright concerns. That is why the doctrine of fair use is so important, especially in the visual arts. Fair use allows the use of copyrighted materials without the permission of the copyright holder, and therefore gives more freedom for artists to express their ideas.

Art responds to ideas about our culture and society. For this reason, many works of art are inspired by the work of other artists. There is even a field of art dedicated to using pre-existing objects or images referred to as appropriation art. Appropriation art has been extensively used since the 1980s and raises questions about originality, authenticity, and authorship (Tate, “Appropriation.” Date accessed February 13, 2020. https://www.tate.org.uk/art/art-terms/a/appropriation). Fair use can be understood through the context of appropriation art. Whether art is considered fair use or not is determined by four factors.

Four Factors of Fair Use

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work. For example, a court will consider whether the work being copied is informational or entertaining in nature. Fair use is more likely to be determined if the material is copied from factual work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

There is no clear formula of how the four factors should be considered in determining fair use. Grey area deliberately exists to assess each scenario on a case-by-case basis. See how this plays out in the two examples below.

Examples

David Smith, Cubi XXVII, stainless steel, 1965. 111-⅜ x 87-¾ x 34 in.

Lauren Clay, Cloud on My Single-Mindedness (Cubi XXVII), acrylic and paper, 2012. 30 x 24 x 12 in.

In 2012, artist Lauren Clay created a small piece, Cloud on My Single-Mindedness, using soft materials. This piece was a response to original work by artist David Smith that was 8’ by 10’ and made from stainless steel. Clay’s work is an interesting commentary on the abstract expressionist art of Smith. Although the two pieces are visually similar it was ultimately settled outside of court that Clay’s piece met the standards of fair use because the small size, soft materials, and colored surfaces were a feminist response to Smith’s large-scale, stainless steel piece.

Left: Patrick Cariou, Yes Rasta, 2000; Right: Richard Prince, Canal Zone, 2008.

In 2000, photographer Patrick Cariou published a book on Rastafarian culture in Jamaica. Appropriation artist Richard Prince used photos from the book without attributing work to the original artist. Prince’s work garnered over ten million dollars in profit. This case raises questions about the extent to which Prince transformed, or did not transform the piece, what his ultimate objectives were, and whether his work diminished the market value for Cariou’s work. Ultimately, an appeals court decided that Prince’s work was transformative enough to a reasonable observer.

The last example, especially, illustrates the difficulty of assessing fair use. When writing about, teaching about, or making art remember that fair use is generally favored under these conditions: 1. using material for educational purposes or personal study; 2. transforming the original work in a way that it adds meaning; 3. using only small portion of the original work; 4. being able to articulate the use of copyrighted material by the objective of the new piece; and 5. citing the source of the original work.

[Content for this post was inspired by Fair Use in the Visual Arts: Lesson Plans for Librarians, an open-access e-book produced by the Art Libraries Society of North America. To learn more about fair use in the visual arts consult the Code of Best Practices in Fair Use for the Visual Arts by the College Art Association.]

Brianna L. Schofield and Robert Kirk Walker. Fair Use for Nonfiction Authors: Common Scenarios with Guidance from Community Practice (Berkeley: Authors Alliance, 2017).

Fair Use for Nonfiction Authors is the third in a series of short, helpful guides from the Authors Alliance (the first two were Understanding Open Access and Understanding Rights Reversion).  The guide was created “to help nonfiction authors understand reasonable strategies for the application of fair use in common situations.”  With the help of several scholarly societies, the authors distributed a survey which garnered the responses of 60 authors with nearly 150 fair use stories.  In addition to the survey responses, the guide was also shaped by existing codes of best practice in various domains.  Keep in mind that the concept of fair use is evolving, and that there are no clear tests of what is or is not fair use.  Also, the guide applies only to fair use in the United States (and neither the book nor this blog post constitute legal advice).

Four factors must be considered to determine whether using a copyrighted work is a fair use: the nature of the use, the nature of the work used, how much of the work is used, and the economic effect of the use.  Case law shows that judges tend to focus on two questions: whether the use was transformative, that is, was the use for a different purpose or did it give the material a different meaning; and was the material used appropriate in kind and amount?

The guide then goes on to cover three common situations encountered by nonfiction authors.  The first is criticizing, discussing, or commenting on copyrighted material.  This use is well established, but does have the following limitations: the amount used should be appropriate for the purpose; the use should be connected to the purpose; and reasonable attribution should be given to the author.  While U.S. copyright law does not require attribution, courts may find it a factor in favor of fair use, and of course it is standard practice in scholarship.

The second common situation is using a copyrighted work to illustrate, support, or prove an argument or point (unlike the situation above, here the copyrighted work is not the object of commentary).  This use is also well established, and shares the limitations above regarding attribution, the amount used, and a connection between the work and the point being made.  An additional limitation in this situation is that a use should not be made if it is merely decorative or entertaining.

The third common situation is using copyrighted works for non-consumptive research, such as text and data mining. For this more recent situation, fair use is strongly supported by existing case law. One caveat, however, is that databases being used in this manner must not have any contractual restrictions on text and data mining. And the material should not be employed in other ways, such as reading normally, or providing access to works digitized by the researcher. Real-life examples of fair use appear for all three situations described above, as well as hypothetical cases to test your knowledge.

The FAQ section of the guide covers creative and commercial uses, options when permission is refused, fair use for unpublished works, and contractual limitations on fair use.  Two questions of particular interest to researchers concern the re-use of figures, and the policies of journals and publishers that require permission for re-use of copyrighted work.  In the case of figures, including charts, graphs, and tables, it is important to remember that facts are not copyrightable.  Creatively expressed figures may be copyrightable; one must analyze each particular case according to the scenarios above.  It is worth mentioning here that some forward-thinking researchers are eliminating the permissions ambiguity regarding their own figures by making them available separately under a Creative Commons license.  Where publishers ignore fair use and require permissions to re-use copyrighted work, the guide recommends engaging with them to explain the rationale and referring them to a code of best practices where applicable.  Where fair use is integral to a work, it will be worth finding a publisher willing to rely on it.

The section “Beyond Fair Use” provides the following suggestions if your intended use does not qualify as fair use:

• Modify your intended use
• Ask the owner for permission (which may include paying a license fee)
• Use an openly licensed work
• Use a work in the public domain

Fair Use for Nonfiction Authors is an open access book (licensed CC BY) available online in PDF. If you would prefer a print copy, you can order one ($20) from the Authors Alliance, or check out the copy in Newman Library.  For more information, see the Authors Alliance fair use page, which in addition to the guide includes a FAQ, links to fair use resources, and fair use news.

Through June 15, the Authors Alliance has a crowdfunding campaign for an upcoming guide, Understanding Book Publication Contracts.  If you would like help support that guide, please consider a contribution.

The University Libraries are excited to announce our first annual Fair Use Week celebration! Starting on Monday February 22nd, Fair Use Week is an event to “celebrate the important doctrines of fair use in the United States and fair dealing in Canada and other jurisdictions” and promoted by the Association for Research Libraries.

In addition to the Fair Use Week events, the University Libraries will have an interactive exhibit on the 2nd floor of Newman Library (near the Alumni Mall entrance) from Monday February 22 through Friday March 4. Please join us for one or more of the events below!

• Monday, 2/22, 4:30-5pm, Newman Library, 2nd floor
  Fair Use Week Exhibit Opening – enjoy some light refreshments while exploring the interactive exhibit.
• Tuesday, 2/23, 9:30-10:45am, online*
  Workshop: “Is it a Fair Use? A Hands-On Discussion”
  NLI Credit available.
  *Contact Ginny Pannabecker at vpannabe@vt.edu for online meeting information.
• Tuesday, 2/23, 11:00am-Noon, Newman Library, Multipurpose Room (first floor)
  Workshop: “The New International Movement to Standardize Rights Statements – And How We’re Participating”
  NLI Credit available.
• Wednesday, 2/24, 10:00-11:00am, Newman Library, Multipurpose Room (first floor)
  Discussion: “Behind the Scenes of the Fair Use Week Exhibit: How We Made Our Copyright Decisions”
  NLI Credit available.
• Wednesday, 2/24, 1:25-2:15pm, Newman Library, Multipurpose Room (first floor)
  Workshop: “Is it a Fair Use? A Hands-On Discussion”
  NLI Credit available.

So, what is “fair use” and why do we think it’s important enough to celebrate it for a whole week? 

Fair Use is a four-factor exemption of U.S. Copyright Law 17 U.S. Code § 107 which allows anyone to:

• Copy
• Re-distribute
• Perform
• Electronically transmit
• Publicly display
• Create new versions of others’ copyrighted works

…without permission.*

*When the potential use is deemed to be “fair” rather than “infringing.”  Only a court can decide what is truly “fair use.” However, U.S. law allows anyone to conduct a well-informed fair use analysis in good faith to determine if their proposed use of copyrighted material is more fair or more infringing.

For an example of Fair Use in action and an entertaining video explaining some foundational U.S. Copyright and Fair Use information, take a look at Professor Eric Faden’s “A Fair(y) Use Tale.” The version embedded below was re-uploaded to YouTube (under compliance with the video’s CC BY NC-SA 3.0 license) in order to add transcribed subtitles and captioning.

https://youtu.be/lmOa3DFRicY&w=500&h=375

Thank you for taking a moment to find out more about Fair Use, and we hope to see you at one or more of the University Libraries events!

Thanks to the University Libraries’ 2016 Fair Use Week team: Virginia (Ginny) Pannabecker, Anita Walz, Scott Fralin, Robert Sebek, and Keith Gilbertson!

Reclaiming Fair Use: How to Put Balance Back in Copyright by Patricia Aufderheide and Peter Jaszi was published by the University of Chicago Press in 2011. It’s a well-written history of fair use interpretation and an important corrective to over-cautiousness in asserting user rights. Fair use is a provision of U.S. copyright law that, broadly speaking, allows use of copyrighted works when the social benefit is greater than the owner’s loss. The law sets out four factors which are used to determine whether fair use can be employed: the nature of the use, the nature of the work used, the extent of the use, and its potential economic effect. But since there is no bright line or definitive calculation of the four factors (and other factors which may have bearing), the effect has been limiting (p. xi):

We saw that when people do not understand the law, when they are constantly afraid that they might get caught for referring to copyrighted culture- whether an image, or a phrase of a song, or a popular cartoon character- they can’t do their best work.

Aufderheide and Jaszi feel that the four factors (and checklists based on them) have been hindrance (p. 183):

People love checklists, because they hope that the lists will do their fair-use reasoning for them. But checklists tend to be more trouble than help. Sometimes a checklist simply discourages fair use in situations where the user might have an adequate rationale not captured by the list. More often, checklists simply lead to further confusion. Focused on the four factors, they treat the factors as if they had a concreteness that they do not. Those four factors have been widely interpreted by judges over the years.

Instead they distill fair use evaluation into three questions (p. 24 and 135):

Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose? Was the amount of material taken appropriate to the purpose of the use? Was it reasonable within the field or discipline it was made in?

The first and third questions are especially important in the revitalization of fair use. While copyright has become “long and strong” in recent decades, fair use has made a comeback since the late 1990s to lend the law more balance. Fair use interpretations have been primarily strengthened in two ways: first through the concept of transformativeness (use for a different purpose than originally intended), and more recently through development of codes of practice for particular fields. Both are now major considerations by courts (p. 80). Aufderheide and Jaszi have been leaders in developing best practices for various communities, first with documentary filmmakers (a process related in Chapter 7) and most recently as contributors to initial work toward a code of practice for the visual arts (PDF).

Codes of best practice “represent a common understanding in a community of practice” (p. 120) and emphasize demonstrating good faith (e.g. through attribution). The codes developed thus far are in agreement on three areas of fair use: critique, illustration, and incidental capture. The codes are also balanced in the sense that the communities (e.g. documentary filmmakers) are often creators as well, so they must take into account how their own work might be used. Aufderheide and Jaszi emphasize that, like a muscle, fair use is strengthened by use– it is one arena in which behavior affects the law, not vice-versa. In addition to communities of practice, the law provides exceptions for certain kinds of use, such as the educational exemptions in Section 110-1 and 110-2.

While the authors champion fair use, they are clear about the problems that remain. In the digital environment, many works are leased rather than owned, and contracts may include language limiting fair use rights. The Digital Millennium Copyright Act (DMCA) of 1998 made it illegal to override digital encryption, so exercising one’s fair use rights becomes impossible. Reliance on the courts to interpret fair use has its disadvantages, and one casualty has been music sampling. The interaction of three court cases has severely limited fair use for music (p. 90-93). Formal copyright registration entitles owners to statutory damages, and the potential maximum has a chilling effect (p. 32). The courts have also expanded secondary liability. The authors call for for advocacy on DMCA reform as well as on orphan works.

Aufderheide and Jaszi are unexpectedly critical of free-culture and commons advocates. They indict free-culture activists for making copyright the villain (p. 48) and seeking alternatives elsewhere rather than acknowledging balancing effects of copyright law such as fair use (p. 54):

The commons rhetoric… celebrates a particular vision of the public domain as a space entirely free of intellectual property constraint, while either ignoring or slighting exemptions and balancing features that limit copyright owners’ monopoly control.

Yet the commons is growing steadily, and search engines now allow users to filter images by license. And in their discussion of the public domain (p. 141), the authors fail to mention the Creative Commons Zero (CC0) license for intentionally placing works in the public domain. While commons advocates may have overlooked fair use, the unnecessary distinction between the two approaches is contradicted by the authors’ own work on a code of practice for OpenCourseWare, which relies on both open licensing and fair use.

The international environment for fair use is covered in Chapter 10. Most countries lack a fair use provision, but have a much lower risk of litigation and lack statutory damages for infringement. Because fair use is the exception rather than the rule, harmonization of copyright through treaties is a continuing threat to it.

Fair use is deliberately vague, and always a case-by-case decision. To Aufderheide and Jaszi, this is a feature, not a bug (p. 163):

Creators benefit from the fact that the copyright law does not exactly specify how to apply fair use…. Fair use is flexible; it is not uncertain or unreliable.

Reclaiming Fair Use features inset boxes throughout the text, “Fair Use: You Be The Judge” (with answers at the back) and “True Tales of Fair Use,” and has five useful appendices, including a template for a code of best practices and a section on myths and realities of fair use. While it contains more background than some readers may desire (they can go straight to Chapter 9, “How To Fair Use”), this book is a valuable perspective on fair use and always interesting and well-written.

More information about fair use, including codes of practice, can be found at the Center for Media & Social Impact at American University, which Aufderheide co-directs. In addition, Jaszi provided testimony on fair use to a House of Representatives subcommittee in January (his testimony begins at 39:00 in the video, and his written submission is available in PDF).

Reclaiming Fair Use is available as an e-book through the University Libraries.