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Fair Use: You Be the Judge

Scenario #1

For Sheila’s academic article comparing the work of two major later twentieth-century painters, she has acceptable-quality reproductions of the works compared, but the journal says authors must get permissions for illustrations. Does she need permission legally? And what does she say to the journal?

To decide whether the proposed illustrations are comfortably within the fair use zone, Sheila can use Section I of the Code of Best Practices in Fair Use for the Visual Arts to see if her uses are within the best practices of the field. Look particularly at the limitations, which include (among others) a clear reason linked to your analysis for showing the images, a decision linked to that reason for the size and other characteristics of the reproduction, and of course attribution. If her uses don’t match up with the limitations, she might for instance think about reinforcing her case for fair use by creating closer links between the chosen illustration and the text. Once she is confident of your fair use justification, she is in a good position to explain to her editor at the journal why fair use is appropriate. Some journals, including those produced by the College Art Association, have changed their overall policies. For others, for instance Routledge, you may still need to make an individual case for your use. The more authors insist on their fair use rights, the more likely it is that journals change their policies to conform to the law.

Scenario #2

Jean-Claude has found an acceptable-quality copy of the public-domain painting he needs to illustrate a point he is making in his new book. The same image is available from a museum, but the museum would charge him a permissions fee. Can he use the copy he found?

Jean-Claude does not need to pay any fees—neither a copyright permission fee nor a licensing fee—to include this illustration in his book. Even if the painting were still protected by copyright, courts have determined that a simple photographic reproduction of a two-dimensional item cannot be copyrighted. In addition, the painting Jean-Claude wants to use has no copyright at all, since it’s in the public domain. He already has access to the image, as well. If he couldn’t otherwise get access to the image, he would have to pay the licensing fee the museum asks if he wanted it.

Scenario #3

Wei is teaching an Introduction to Art History class this year, and has gotten some great donations of slides from fellow professors. She’s also drawing on her own photographs from museums, monuments, books, and websites. Can she put relevant slides and slideshows on her class’s passworded website, for pre- and post-lecture study, as well as showing in class? She hasn’t gotten permission for any of this material, and at least half of it is probably copyrighted.

Wei can consult Section II of the Code of Best Practices in Fair Use for the Visual Arts to see if her uses are within the best practices of her field. Her peers find that teachers “may invoke fair use in using copyrighted works of various kinds to support formal instruction in a range of settings, as well as for uses that extend such teaching and for reference collections that support it,” given certain limitations. She can consult those limitations, which include (among others) linking her teaching objective to use of the work, choosing size and other characteristics appropriate to the teaching objective, limiting access to the people being taught, and, of course, assigning attribution. Then she can make her own decision about her fair uses for teaching. If she needs permission from the librarian or other school officials, she can explain that reasoning to them, too.

Scenario #4

Daniel is a museum curator. His team is mounting an exhibition on art from twenty-first-century protest movements, with a web component and an interactive, online catalogue. Some of this art is born-digital, some is ephemeral, and some of it was created anonymously. He’s got access to much of it already, but does he also need to seek permissions?

Daniel can consult Section IV of the Code of Best Practices in Fair Use for the Visual Arts to see if his uses are within the best practices of his field. He will find that his peers believe that arts professionals “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,” with certain limitations. He can check to see how his museum’s uses align with the limitations, which include (among others) a clear link between the selected materials and the purpose of the exhibition or related activity, an appropriate choice of reproductive quality, and, of course, attribution where possible.

It is also possible that he may have nonlegal concerns in this exhibition that could affect his choice to seek permission, as well—a personal or institutional relationship, for instance. But Section IV can make clear to him where the comfort zone is for applying fair use.

Scenario #5

Victoria is an artist, working on an installation featuring a display of current top news websites in different countries. She has also got a loop playing below it of headline news from the week before. Does she need to ask permission from anyone to build this material into her art?

Victoria will be helped in understanding her fair use rights by consulting Section III of the Code of Best Practices in Fair Use for the Visual Arts. Consider especially the limitations. Do the choices she is making for her exhibition fall within them? If not, can she alter her practice to have them conform to the limitations? If so, she is in the fair use comfort zone.

Scenario #6

Felicia is in her college library’s special collections unit, working on the personal archive of a regional artist. She’d like to make digitally available correspondence between the artist and various collectors and institutions. The donor’s agreement allows digital display of the artist’s materials, but many items are copyrighted to others. Can she employ fair use? How?

Felicia can consult Section V of the Code of Best Practices in Fair Use for the Visual Arts to see if her uses are within the best practices of her field. Her peers find that she “may invoke fair use to create digital preservation copies and to enable digital access to copyrighted materials in their collections, and to make those collections available online,” with certain limitations. They include (among others) providing search tools for the digital display, doing due diligence to avoid violations of privacy or other noncopyright rights of others, making the digital display size appropriate to the use, and giving users a contact for feedback.