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At last month’s Annual Conference, CAA’s Committee on Intellectual Property (CIP) organized “Learning from Experience: Fair Use in Practice,” a panel addressing fair use and how reliance on this aspect of copyright law has increased since CAA published its Code of Best Practices in Fair Use for the Visual Arts two years ago. The CIP session featured leading visual arts professionals in four areas: the academic art library, publishing, art-making, and artist-endowed foundations, each of whom described the importance of fair use in her work. The session, which was attended by more than ninety conference-goers, was led by CIP’s new chair, Anne Collins Goodyear, co-director of the Bowdoin College Museum of Art, and CAA president emerita, during whose tenure CAA undertook its fair use project, which culminated in the publication of the Code.

The panel opened with a brief overview of CAA’s fair use initiative by Goodyear, and then offered compelling examples of the Code’s application. Carole Ann Fabian, the Director of the Avery Architectural and Fine Arts Library at Columbia University reported that Columbia advances the principal of open access policy where possible, and that Avery librarians draw upon three fair use codes when advising library users about quoting from or reproducing copyrighted materials: that developed by the Association of Research Libraries (2012), CAA’s Code of Best Practices (2015), and the Association of Art Museum Directors (AAMD) Guidelines (2016). The shared norms of the CAA and AAMD codes, both of which champion a liberal assertion of fair use, provide particularly helpful guidance on fair use applications related to copyrighted images.  Avery is often the first point of contact for students and faculty who have questions about these issues, and as a collecting organization, is also a provider of primary content (and their digital surrogates) to scholars worldwide. Fabian noted that the work librarians perform educating users about copyrights and the doctrine of fair use is ongoing with each year’s influx of new students and faculty.   Having a concise resource like CAA’s Code, makes it infinitely easier to introduce library users to this essential feature of American copyright law.

Victoria Hindley, Associate Acquisitions Editor, MIT Press, reported that discussions about fair use at last year’s CAA Annual Conference motivated her to work with her colleagues at MIT Press to pursue a fair use initiative of their own. With support from Executive Editor Roger Conover, Press Director Amy Brand, legal counsel, and others, Hindley helped to define a progressive position in support of responsible fair use. “One of our primary goals,” she said, “was to figure out how to reduce the burden of clearing permissions placed on the author.” The resulting proposal, which is undergoing final Institute approval, is a robust document that most notably, as she explained: “would no longer require authors to indemnify the press when they have made a reasonable good faith determination of fair use.”  MIT Press has developed proposed new contract language in support of this position; and, to further empower authors, the Press has crafted permissions guidelines that take advantage of the CAA Code and also refer authors to it. “The CAA Code of Best Practices has proven to be an invaluable guide for us as we’ve held these discussions and made decisions about our own guidelines,” noted Hindley. The new policy pending adoption at MIT Press would provide protections similar to those that CAA grants contributors to its publications.

The third speaker was the distinguished artist Martha Rosler, who received a Lifetime Achievement Award during the conference from the Women’s Caucus for Art. Rosler has for decades incorporated into her work images circulating in what she has called the public sphere of mass media, including newspapers, magazines, and television, without stopping to consider copyright. While showing examples of her work, Rosler described the importance of processes like hers, which, she said, for many artists “constitute an essential form of critique.” Although Rosler’s practice predates the publication of CAA’s Code of Best Practices, she acknowledged that the Code serves to clarify the principles on which such a practice is based. She also noted that the Code has the potential to offer support and encouragement to other artists who might otherwise shy away from the legitimate use of copyrighted material in their work, for fear of adverse consequences. She also observed, with regret, that many artists, particularly those working in video, have deliberately abandoned or failed to undertake projects involving appropriation precisely because the legal departments of broadcast entities bar the airing of such works, out of fear of reprisal for purported infringements.

Francine Snyder, Director of Archives and Scholarship at the Robert Rauschenberg Foundation, was the fourth speaker in the CIP session. She talked about the positive effect on the Foundation of a proactive fair use policy in the year since it was introduced. The main goal of the policy has been to foster scholarship about Rauschenberg, disseminate knowledge, and enhance educational initiatives. In this regard, Snyder reported, the policy has proven a great success, generating more scholarship and innovative projects. Among the outcomes to which she referred is an online gallery for children that includes images of Rauschenberg’s work. Snyder indicated that one of the most important values of the Foundation’s public turn to fair use has been to reduce anxiety on the part of those who want to reproduce the artist’s work for creative and scholarly purposes. Snyder mentioned that the fair use policy does not apply to commercial uses, for which the Foundation relies on licensing through VAGA. By way of conclusion, she explained that the Foundation is committed to an open dialogue as interpretations of fair use continue to evolve, as seen in the multiple applications of CAA’s Code of Best Practices.

Following the formal presentations, Jeffrey P. Cunard, CAA’s counsel, and Co-Chair of its Fair Use Task Force, moderated a discussion with the speakers and audience. Cunard noted the importance of the Rauschenberg Foundation’s turn to the doctrine of Fair Use in making work by Rauschenberg available for scholarly and creative purposes, and the relationship between fair use and an open approach to licensing images. He also clarified, in conversation with Rosler, that copyright holders had not objected to her pioneering work, which may not have been surprising, given the transformative nature of her use of appropriated material.

The talks by each of the speakers on this panel, along with the great interest expressed by the audience, point to increased awareness of the application of fair use since CAA published the Code of Best Practices two years ago. While detailing the many ways in which fair use is benefitting scholarship and creative practice, the session also makes clear the need for ongoing education about the Code, and the importance of publicizing and encouraging its use. We invite further examples of fair use in action, and any suggestions for the continued dissemination of the Code and the guidance it provides.