Fairly judging fair use: One Perspective on the Graphic Artists Guild V. College Art Association

Josh Bolick

Josh Bolick AKA Fair Use Police

*This is a guest post written by my colleague and office-mate Josh Bolick. I wholeheartedly support his rabble rousing.


This morning I came across a tweet from the Graphic Artist’s Guild regarding the recent CAA Code of Best Practices in Fair Use for the Visual Arts:

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I’ve been reading the CAA’s Code and thinking about fair use as it applies to visual arts in preparation for an upcoming presentation at a university with a strong arts emphasis. As such I was keen to know why the Graphic Artist’s Guild would protest. This is my thinking through the letter, which originated with National Press Photographers Association General Counsel and is endorsed by leaders of other relevant associations.

First, full disclosure, I am not free of bias. I work at Florida State University in the Office of Scholarly Communication where I consider and offer perspective on fair use questions as they arise in our community of researchers. As such, I’m in favor of fair use in the academy and think it’s a valuable asset that should be carefully and thoughtfully applied where appropriate. I’m no copyright radical. I strive to be dispassionate and fair in the consideration of copyright questions and the application of fair use, and value the intellectual property rights of others as well as well as the mission of the academy and researchers. So this conversation is taking place entirely within an academic context, which I think the CAA Code was also aiming for.

Second, I’m not a lawyer. However, I have colleagues at venerable institutions around the country who are. I would love to know what they think and look forward to reading their own reactions (I’m looking at you, Kevin Smith@Duke).

Finally, this is assembled pretty quickly, between meetings and other obligations, while sitting at my desk streaming The Beastie Boys Ill Communication on YouTube. I heartily invite all interested parties to engage with my ideas. If I got something wrong, I’m ready to admit it. And my goal is strictly collegial and respectful of all parties.

The NPPA Response letter is available here [PDF].

The NPPA Letter is represented in block quotes below to make it easily distinguishable from my own analysis, which follows each section. Comments are welcome on the Google Doc where I drafted this. Here we go:

“The undersigned represent the interests of a significant number of graphic artists, illustrators, photographers and other visual artists working professionally in the United States. We affirm that scholars and the public need to have the freedom to create new works and, that frequently, these derivative and new works are based on existing images through the application of the fair use doctrine. But it should also be recognized that professional visual artists create part of their income stream through licensing of their creative labors and that there must be proper balance between the needs of these various communities. Fair use is intended to provide that balance, and should not be used as an excuse to avoid paying a license, where appropriate, because it is perceived to be either difficult to obtain or too expensive.”

I agree, and so does the CAA Code. Simply invoking fair use in order to avoid paying for a license is spurious, disrespectful, irresponsible, and would result in infringement if litigated. That’s why the Code repeatedly includes language like “The writer’s/teacher’s analytic/pedagogical objective should predominate over that of merely representing the work or works used.” The takeaway is that the use has to be justified by the purpose of the use, not just added visual interest or flippant inclusion. At no point does the Code suggest that we can employ fair use to merely avoid paying for a license.

“One of the unfortunate conclusions of the Code in its current form is that copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace. Nothing could be further from the truth. Visual artists want their works used and only seek fair and reasonable compensation for that use. The Code fails to educate the academic arts community on when licensing is appropriate. Each of the undersigned associations provides educational content on their Web sites and/or programming for the education of their members and the general public regarding the full range of options under copyright law, including, but not limited to, fair use. We understand that the Code was crafted to deal with fair use specifically, but believe it does a disservice to your community by not further discussing licensing options.”

Unfortunately, in my admittedly limited anecdotal experience, copyright does often act as a barrier and result in self-censorship, particularly in academic contexts that rely heavily on visual art. A history professor can feel confident excerpting a block of text from another work for the purpose of engaging with the ideas contained therein without worrying about their use being contested. That’s fair use. They don’t think of it as such, because it’s so integrated into scholarly practice as such. As I write this, an art history graduate student just came to our office stressed out about incorporating images into her research. The culture of permission that the CAA Code is seeking to address is directing her research because she can’t navigate the complicated landscape and lacks funds to pay for image licenses. That’s a travesty for research culture. The Code addresses “when licensing is appropriate” by providing a list of limitations to the principle. Beyond the limitations, a license may be appropriate. IMO, the Code accomplishes the stated purpose of the CAA in creating the Code by not going into great detail regarding licensing options, particularly since the undersigned associations have all that information prominently displayed on their own webpages.

“We also have a major concern that the Code itself does not deal with commercial uses made by museums and other non-profits under the claim of fair use, in particular the production of useful articles and coffee table books created for the commercial benefit of those institutions. Additionally, if educators are permitted to claim fair use for all of their classroom materials, publishers may lack the incentive to produce those materials, thus undermining the entire educational publishing business and in turn decimating the market for visual image sales.”

The creation of coffee table books created for commercial benefit falls outside the scope of fair use, and therefore outside the scope of the Code. The “Principle” under section 4 “Museum Uses” states: “Museums and their staffs may invoke fair use in using copyrighted works, including images and text as well as time-based and born-digital material, in furtherance of their core missions, subject to certain limitations [listed below].” Again, if a use falls outside the limitations, such as producing a coffee table book to sell in the gift shop to members of the public for their aesthetic pleasure, then fair use likely does not apply and licenses should be sought to purpose that content as such. Further, classroom use in limited and specific ways is clearly recognized as fair, subject again to the limitations suggested by the Code. Educators will never be able to “claim fair use for all of their classroom materials” unless all of their classroom uses were compliant with the principle given and the limitations listed, based on the 4 factor analysis, which seems highly unlikely.

“Last but not least, as partners with the academic community we would have warmly welcomed the opportunity to participate in the study groups had we been asked.”

I can appreciate this, but it seems like the CAA did its best to include various stakeholders if we can take the CAA President at their word in the opening “Message from the CAA President” and as outlined in Appendix B: How the Code Was Created.

That’s the end of the first narrative portion of the letter. Then we get to specific points:

Analytical Writing

The Code gives the impression that if one intends to write a book about a subject, and includes images that this favors fair use. This practice is in fact contrary to industry practice.

I can only speak for myself, but I didn’t get this impression at all, at least not in the broad sense that you suggest. What is stated is that “in their analytic writing about art, scholars and other writers (and, by extension, their publishers) may invoke fair use to quote, excerpt, or reproduce copyrighted works, subject to certain restrictions.” Where the use of an image clears the limitations, based on the four factors of fair use, that use may be fair and treated as such. Doing so may well be contrary to industry practice, but that’s the “culture of permission” that the CAA is addressing. They’re not saying to reuse images willy-nilly because it makes the book prettier; they’re saying that certain uses are allowed in the absence of permission if the use accomplishes an analytic object and is represented in an appropriate size/resolution to accomplish that end, etc.

While the use of a few selected images in a critical review of an artist’s work, such as an exhibition review, would be an example of fair use; a general review of an artist’s work in which the images are aesthetically used to enhance the text, even by an academic would require permission from the copyright owner.

Agreed. I don’t think the CAA Code suggests otherwise.

There is no automatic “educational” fair use exception, and all fair use factors must be taken into consideration, particularly harm to the potential market, where for many types of works and visual artists, the educational market is the only market.

Agreed; all fair use factors must be considered, but without giving particular consideration to any one over the others. The fourth factor, potential market harm, is no more or less important than the other factors and recent court cases bear this out[a].

Making Art

We believe the recommendation to prepare an “artistic objective” statement for fair use is misplaced. An artistic objective statement is what an artist writes for a gallery, exhibit or retrospective and should not be a “substitute” for the four-factor fair use test.

I think this references the second limitation in this section (Three: Making Art). I don’t think the CAA is saying to “prepare an ‘artistic objective’ statement for fair use. Rather, they’re saying the that use should be justified in view of the objective of the new work, and that artists who do so should be prepared to defend that decision. In doing so artists should work through the four factors, and doing it in writing is a good idea.

“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.” This is already a fair use requirement for education/scholarship. And there is always some place to create a footnote.

Agreed.

•We assert that Appendix A, Fair Use Today, is personal opinion and should not be published side-by-side with the Code because it undermines the four-factor test in favor of an expansive fair use “two-key analytic question” test.

It’s not really a personal opinion so much as it’s a professional opinion by a recognized expert. Further, the Code’s Introduction addresses this in the first paragraph: “Appendix A is an essay by Peter Jaszi presenting a perspective on fair use.” And again as a footnote to the Appendix: “*Peter Jaszi wrote this section and is solely responsible for it.” Hooray for context. Also, the four factor test isn’t undermined by the “two key analytic questions.” And Jaszi isn’t saying, by my reading, that members of the community ought to apply these two questions. Rather that “judges today generally focus” on these two questions and lean heavily on the four factors in doing so. He’s not saying, “do this”; he’s saying “this is what judges are doing.”

The final bullet in the Code’s “Limitations” regarding the creation of reference collections states that access should be for “legitimate purposes,” yet that term is undefined.

After looking for this and being confused as to what you’re talking about, I finally found this as the last bullet point under section Two: Teaching About Art. OK, “legitimate purposes” isn’t defined. I suspect they’re referring to pedagogical aims outlined in and subject to the “Limitations” portion to which this bullet belongs.

The Code does not recommend that an academic institution provide copyright education or information when using works that rely on fair use. We suggest that students should be educated about copyright and the need to seek permission in most instances.

I, and I suspect my broader community of colleagues who consider copyright in the academic context, heartily agree that more education and information is welcome. We’re working on it, diligently, though I disagree about “the need to seek permission in most instances.”

“Without participation from all of the stakeholders in the visual arts community there can be no consensus, let alone a set of “Best Practices in Fair Use for the Visual Arts.” As developed, rather than “providing a practical and reliable way of applying” copyright law and fair use, the document creates far more misconceptions than it resolves and encourages misappropriation of copyrighted work rather than the practice of due diligence and licensing. It is not helpful to the courts because it presents biased findings and in fact helps lead the professional community astray with regard to the best way to proceed when seeking to use the works of others.”

As I’ve stated above, the CAA appears to have made a good faith effort to include a broad range of the visual arts community in the production of the Code. I can certainly appreciate that the undersigned organizations would like to have been at the table. I disagree that the Code creates more misconception than already exists (that would be difficult to do given the atmospheric level of misconception that exists regarding copyright and fair use). The Code doesn’t address licensing because that’s outside the scope of the goal of a “Best Practices in Fair Use…” document. I think the goal is to give some guidance in the application of fair use; if your use can’t be considered fair in light of the guide, then permission/license should be sought. The Code isn’t intended to be helpful to the courts, but to practitioners in the visual arts academic community to whom the CAA is speaking. From the Introduction: “Although a code cannot control the judicial interpretation of fair use, it helps courts to become familiar with best practices in a professional community when called upon to rule on fair use.” As to whether the Code, “in fact helps lead the professional community astray”, I guess that’s a matter of opinion.

Very Best,

Josh Bolick

CC-BY this sucker. Reuse at will.

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