The College Arts Association has made their Code of Best Practices in Fair Use for the Visual Arts available. Best Practices in Fair Use was released this month. You can download a copy of it here. At 22 pages, it is quite readable, and gives an excellent overview of the different areas of the fair use doctrine available to artists, scholars and cultural institutions. For those of you who are particularly ambitious (or are trapped inside due to a blizzard once again) here is the original 90 page issues report upon which Best Practices in Fair Use is based.
As noted in a prior post, the fair use doctrine is a defense against a claim of infringement. Best Practices in Fair Use is correct in noting that a determination of fair use is extremely fact sensitive (the cynical will say the outcome can depend on whether the judge had her coffee that morning or not). Despite the very factual nature of a fair use defense, I still would have liked to see examples included of when a court found for fair use and against fair use to help make intangible theory a little easier to grasp, or at least to give a point of reference.
What I found interesting is that Best Practices in Fair Use recommended attributing the work properly. Attribution has nothing to do with fair use, but it does have everything to do with the Visual Artist’s Rights Act of 1990 (VARA), also known as moral rights. So while lack of attribution will not necessarily help or harm a fair use defense, it will certainly give rise to a potential VARA violation for works created after 1991. Attribution should certainly be included as a best practice, but the difference between a fair use defense and a VARA violation should have been made more clear.
One other area I would have liked to have seen discussed is that of copyright trolls. These are people or companies whose sole purpose is to scour the internet and make claims (many times false) that they are the owners of a particular copyright and that you the user now owes them royalties. Sadly, this behavior is not limited to those making outright fraudulent claims, but organizations who contract with artists or their estates to license that artist’s works. Many times these organizations make claims to copyright that they do not own. The best example of this is the recent case of the Ansel Adams glass plate negatives, in which an organization claiming to represent “all” of his works claimed copyright to plates discovered in a garage. The court held that this particular organization only owned licensing rights to those photographs Adams assigned to them and no others–certainly not “all” of his works.
Best Practices in Fair Use is a good baseline. However, a fair use defense and risk analysis can be complicated depending on the provenance of the work and whether it falls under the Copyright Act of 1976 or the Copyright Act of 1909 (the rules regarding ownership of copyright under each is vastly different–the Adams plates fell under the Copyright Act of 1909, which is why the court ruled as it did). Artists and organizations should never assume that their work is fair use, but must do the analysis for each and every piece. Does it add another layer of complexity to the already enormous task of creating an exhibit, scholarly piece, educational seminar or new work of art? Yes. But it is worth the time if it will protect you in the long run against an infringement claim. And like any exercise, it becomes easier over time.